b'Confidentiality of the Attorney General\xe2\x80\x99s\nCommunications in Counseling the President\n[The follow ing m em orandum exam ines the scope of confidentiality accorded the Attorney G en eral\xe2\x80\x99s\ncom m unications with the President, and the extent to which those com m unications m ay be\nshielded from com pulsory disclosure to M em bers of Congress, the courts, and mem bers o f the\npublic. It considers the dual nature o f the Attorney G eneral\xe2\x80\x99s role as Cabinet mem ber and as\nprincipal legal adviser to the President, and extends to the broader question of the confidentiality of\nthe deliberative m aterials generated by the Attorney General and those w ho assist him . The\nm em orandum discusses the applicability of the doctrine of executive privilege, and the appropriate\ncircum stances for its invocation. It also analyzes the scope of the deliberative process and attom eyclient privileges under the Freedom o f Inform ation A ct, and o f the traditional governm ental\nevidentiary privileges and their statutory counterparts.]\n\nAugust 2, 1982\nMEMORANDUM FOR THE ATTORNEY GENERAL\nYou have asked this Office to advise you regarding the scope of confidentiality\naccorded your communications with the President in your role as Attorney\nGeneral. Your inquiry focused particularly on the extent to which legal advice\nrendered by you to the President may be shielded from compulsory disclosure to\nMembers of Congress, the courts, and members of the public. Our analysis of\nthese issues includes the broader subject of the confidentiality of the deliberative\nmaterials generated by you, and those who assist you, in the performance of your\nresponsibilities as adviser to the President. We also discuss briefly certain\nprivileges which protect other communications generated by the Department of\nJustice in the course of performing its duties.\nAny discussion of the confidential nature of the Attorney General\xe2\x80\x99s communi\xc2\xad\ncations with the President must begin with a recognition of the dual counseling\nfunctions performed by the Attorney General. The Attorney General serves as\nboth a Cabinet adviser and the principal legal adviser to the President.1 As a\nmember of the President\xe2\x80\x99s Cabinet, the Attorney General maintains a close and\nconfidential advisory relationship with the President over a broad range of policy\nissues, including the highest and most delicate affairs of state. See, e.g., Rankin,\n\n1 In 1828 Attorney General Wirt described the Attorney General as "confidential law adviser to the Executive\nbranch of the government \xe2\x80\x9d See H Cummings a ndC . McRirland, Federal Justice 91 (1937). In two lengthy essays\nanalyzing the executive departments and the Attorney General in particular, former Attorney General Cushing\ndescribed the department heads as the President\'s \xe2\x80\x9cconstitutional counsellors,\xe2\x80\x9d his "political or confidential\nministers,\xe2\x80\x9d and his \xe2\x80\x9c constitutional advisers.\xe2\x80\x9d 7 Op. Att\xe2\x80\x99y Gen 453 (1855). 6 Op. Att\xe2\x80\x99y Gen. 326 (1854)\n\n481\n\n\x0cAssistant Attorney General, Office of Legal Counsel, \xe2\x80\x9c Memorandum for the\nAttorney General re: Secrecy of Cabinet Proceedings and Papers\xe2\x80\x9d (Oct. 15,\n1954). This advisory relationship to the President, a relationship shared by all\nmembers of the President\xe2\x80\x99s Cabinet, is constitutionally based. Article II, \xc2\xa7 2, of\nthe Constitution provides that the President\nmay require the Opinion, in writing, of the principal Officer in\neach of the executive Departments, upon any Subject relating to\nthe Duties of their respective Offices. . . .\nWith respect to the Attorney General, this constitutional duty was carried over\ninto statute by \xc2\xa7 35 of the Judiciary Act of 1789, 1 Stat. 93, which required the\nAttorney General \xe2\x80\x9c to give his advice and opinions upon questions of law when\nrequired by the President of the United States.\xe2\x80\x9d This provision is now codified in\n28 U .S.C . \xc2\xa7 511.2\nWe note, as a preliminary matter, that the confidentiality of the communica\xc2\xad\ntions discussed herein cannot be analyzed without consideration of the contents\nof the communications, including the identities of the persons generating the\ncommunications and the persons to whom they are addressed, as well as the\nidentities of the persons seeking disclosure. Generally speaking, however, the\nconclusions reached in this memorandum, and discussed in detail below, are as\nfollows:\n1.\nThe President may assert an arguably absolute executive privilege against\nthe Legislative Branch and in the courts to protect from disclosure communica\xc2\xad\ntions involving military, diplomatic, or national security secrets;3 a qualified\n2 The original language o f \xc2\xa7 35 of the 1789 Judiciary Act has remained virtually intact through subsequent\ncodifications o f the provision. See 28 U.S C. \xc2\xa7 511 (1976), which provides:\nThe Attorney G eneral shall give his advice and opinion on questions of law when required by the\nPresident.\n3 SeeH alkin v. H elms, 598 F.2d 1 (D.C. Cir. 1978), holding that *\xe2\x80\x98[t]he state secrets privilege is absolute!,]" id. at\n7, but permitting the district court to examine a classified affidavit in camera, in order to satisify itself of the validity\nof the claim o f privilege with respect to the underlying classified information\nA lthough the Suprem e Court has not stated expressly that the privilege for military, diplomatic, and national\nsecurity secrets is absolute, it has used very strong language to this effect. See, e.g ., the C ourt\xe2\x80\x99s suggestion in\nU nited States v. Nixon. 418 U .S. 683, 711 (1974), that even in camera examination of documents may be\ninappropriate when a court is satisfied, \xe2\x80\x9c from all the circumstances o f the case,\xe2\x80\x9d that there exists a reasonable\ndanger of disclosure o f military, diplomatic, o r national security secrets\'\nAs to the areas of A rt. II duties [involving military or diplomatic secrets,] the courts have\ntraditionally shown the utmost deference to Presidential responsibilities In C. & S. A ir Lines v.\nWaterman S. S. Corp.. 333 U.S 103, I I I (1948) [(emphasis added)], dealing with Presidential\nauthority involving foreign policy considerations, the Court said:\n\xe2\x80\x9c The President, both as Commander-in-Chief and as the Nation\'s organ for foreign affairs, has\navailable intelligence services whose reports are not and ought not to be published to the world. It\nwould be intolerable that courts, w ithout the relevant information, should review and perhaps\nnullify actions c f the Executive taken on information properly held secret.\xe2\x80\x9d\nIn U nited States v. Reynolds. 345 U.S. 1 [,10] (1953), . . . the Court said:\n\xe2\x80\x9c It may be possible to satisfy the co u rt, from all the circumstances of the case, that there is a\nreasonable danger that compulsion of the evidence will expose military matters which, in the\ninterest of national security, should not be divulged. When this is the case, the occasion for the\nprivilege is appropriate, and the court should not jeopardize the security which the privilege is\nmeant to protect by insisting upon an examination c f the evidence, even by the judge alone, in\nchambers."\n418 U .S . at 710-11 (emphasis added). See also United States v. Reynolds, 345 U .S. 1 (1953):\nIn each case, the showing of necessity [for access to the documents] which is made will determine\nC ontinued\n\n482\n\n\x0cexecutive privilege may be claimed to protect law enforcement investigatory files\nand sensitive deliberative communications between the Office of the President\nand the Attorney General\xe2\x80\x99s Office, as well as staff communications within the two\noffices which are reflective of the deliberative process. The President customarily\nreserves exclusively to himself the power to assert the claim of executive\nprivilege against Congress.4 However, the Attorney General, as \xe2\x80\x9c head of [an\nexecutive] department which has control over the matter,\xe2\x80\x9d may, after personal\nconsideration of the matter, invoke the privilege against others in court. United\nStates v. Reynolds, 345 U.S. 1, 8 (1953).5\n2. The Attorney General may assert a \xe2\x80\x9c deliberative process\xe2\x80\x9d privilege pur\xc2\xad\nsuant to exemption 5 of the Freedom of Information Act, 5 U.S.C. \xc2\xa7 552(b)(5),\nto withhold from the public nonfactual deliberative communications; absent a\nbreach of the confidentiality of the privileged communication, the President, or\nthe Attorney General on his behalf, may assert the attomey-client privilege\npursuant to exemption 5 of the Freedom of Information Act, 5 U .S.C .\n\xc2\xa7 552(b)(5). Similarly, absent a waiver of the privilege, the Attorney General\nmay assert the common-law privilege for attomey-client communications, which\nhas been codified in Rule 501 of the Federal Rules of Evidence, and Rule 26 of\nthe Federal Rules of Civil Procedure, to protect from disclosure in litigation\ncertain confidential communications of a legal advisory nature which were\nprepared for the Office of the President.\n3. Finally, this memorandum addresses the traditional \xe2\x80\x9c governmental\xe2\x80\x9d evi\xc2\xad\ndentiary privileges which, although available to the Attorney General, only\nhow far the court should probe in satisfying itself that the occasion for invoking the privilege is\nappropriate Where there is a strong showing of necessity, the claim of privilege should not be lightly\naccepted, but even the most compelling necessity cannot overcome the claim c f privilege i f the court\nis ultimately satisfied that military secrets are at stake.\n345 U.S. at 11 (footnote omitted) (emphasis added). See generally Daniel. Assistant Attorney General, Civil\nDivision, \xe2\x80\x9c Memorandum to All Civil Division Attorneys re\' Asserting Claims of Official Governmental Privilege in\nLitigation" (Nov. 1980); Rehnquist, Assistant Attorney General, Office of Legal Counsel. \xe2\x80\x9c Testimony on\nExecutive Privilege before the Senate Judiciary Subcommittee on Separation of Powers\xe2\x80\x99* (Aug 4, 1971). C f\nAmertcanCivil Liberties Union v. Brown, 619 F. 2d 1170 (7th Cir. 1980) (en banc), and H al kin v. H elms. supra, both\nconstruing Reynolds, supra, and Nixon, supra, to permit in camera examinations of documents for which the state\nsecrets privilege was claimed in certain exceptional circumstances. American Civil Liberties Union, supra, held\nthat a litigant\'s strong showing of need, e.g., that withheld documents were critical to substantiate a claim of\nconstitutional violation, may compel the district court to conduct in camera review of documents allegedly covered\nby state secrets privilege in order to determine whether they are properly classified\n4 This limitation on the exercise of the privilege against Congress stems from a practice instituted by Presidents\nKennedy and Johnson, that \xe2\x80\x9c Executive privilege can be invoked only by the President and will not be used without\nspecific Presidential approval.\xe2\x80\x99\xe2\x80\x99 letter from President Kennedy to Congressman Moss (Mar 7, 1962), and\nformalized in President N ixon\xe2\x80\x99s \xe2\x80\x9c Memorandum for the Heads of Executive Departments and Agencies\xe2\x80\x9d (Mar. 24,\n1969) To date, subsequent administrations have followed this practice. See Olson, Assistant Attorney General,\nOffice of Legal Counsel, \xe2\x80\x9c Memorandum to the Attorney General re: Executive Privilege\xe2\x80\x9d (Oct 9,1981); Harmon,\nAssistant Attorney General, Office o f Legal Counsel, \xe2\x80\x9c Memorandum to All Heads of Offices, Divisions, Bureaus\nand Boards of the Department of Justice" (May 23,1977). See generally Common Cause v. NRC, 674 F. 2d 921,935\n(D.C. Cir 1982) (dictum to the effect that only the President may assert executive privilege).\n5 Although assertion o f the state secrets privilege clearly requires that the claim be made by the head of an agency,\nthe case law governing other claims of executive privilege in litigation is not settled with respect to who must assert\nthe privilege. Compare Union Oil v Morton. 56 F.R.D 643 (C.D. Cal 1972); FTC v. Bramman, 54 F.R.D. 364\n(W.D. Mo 1972); (recognizing claims made by persons other than agency heads), with Anchem Products v. GAF\nC orp, 64 F.R.D. 550 (N.D. Ga 1974); Carter v Carlson, 56 F.R D. 9 (D.D.C. 1972) See also Daniel, \xe2\x80\x9cAsserting\nClaims of Official Governmental Privilege in Litigation," supra note 3 (recommending that all claims of govern\xc2\xad\nmental privilege in litigation, other than those relating to the informant\xe2\x80\x99s pnvilege, be formally asserted by the heads\nof agencies).\n\n483\n\n\x0crarely would be applicable to his communications with the President. These\nprivileges, which have analogues in the Freedom of Information Act, protect\n(a) confidential information which certain employees or members of the public\nare required to report on government records, (b) the identity of government\ninformants, and (c) certain law enforcement investigatory files.6\n\nI. Executive Privilege\nThe doctrine of executive privilege defines the constitutional authority of the\nExecutive Branch to protect documents or information in its possession from\npublic disclosure and from the compulsory process of the Legislative and Judicial\nBranches. See Rehnquist, Assistant Attorney General, Office of Legal Counsel,\nTestimony on Executive Privilege Before Senate Judiciary Subcommittee on\nSeparation of Powers (Aug. 4, 1971). Executive privilege protects material the\ndisclosure of which would significantly impair the conduct of foreign relations,\nthe national security, or the performance of the Executive\xe2\x80\x99s lawful duties.7 It also\nshields confidential deliberative communications which have been generated\nwithin the Executive Branch from compulsory disclosure, in the absence of a\nstrong showing of need by the branch seeking disclosure that access to the\nprivileged communications is critical to the responsible fulfillment of its consti\xc2\xad\ntutional functions. Nixon v. Administrator of General Services, 433 U.S. 425,\n441-55 (1977); United States v. Nixon, 418 U.S. 683, 711-12 (1974); Senate\nSelect Com m ittee on Presidential Campaign Activities v. Nixon, 498 F.2d 725,\n730-31 (D.C. Cir. 1974) (en banc). This privilege is based on the need for\nconfidentiality of communications among high-level government officials, as\nwell as the constitutional doctrine of separation of powers, which provides that\neach branch of government is \xe2\x80\x9c suprem[e] . . . within its own assigned area of\nconstitutional duties.\xe2\x80\x9d United S tates v. Nixon, supra at 705.\nA . Constitutional and Practical B ases c f the Privilege\n\nThe necessity for confidentiality in the advisory relationships between Cabinet\nadvisers and the President, and their respective aides, is of both constitutional\nand practical significance. See United States v. Nixon, supra; Senate Select\nCom m ittee on Presidential Campaign A ctivities v. Nixon, supra. See also Opin\xc2\xad\nion of the Attorney General for the President, \xe2\x80\x9cAssertion of Executive Privilege\nin Response to a Congressional Subpoena,\xe2\x80\x9d 43 Op. Att\xe2\x80\x99y Gen. ___ , 5 Op.\nO.L.C. 27 (Oct. 13, 1981) (hereafter 1981 Attorney General Opinion); Harmon,\nAssistant Attorney General, Office of Legal Counsel, \xe2\x80\x9c Memorandum for the\n6 See Daniel, \xe2\x80\x9cAsserting Claims o f Official Governmental Privilege in Litigation,\xe2\x80\x9d supra note 3. See also FOIA\nexemption 6, which protects \xe2\x80\x9c personnel and medical files and similar files the disclosure of which would constitute\na clearly unwarranted invasion o f personal privacy,\xe2\x80\x9d \xc2\xa7 552(b)(6); and exemption 7, which shields certain law\nenforcem ent investigatory records, \xc2\xa7 552(b)(7).\n7 Because the types of communications discussed in this memorandum are less likely to implicate military,\ndiplom atic, o r national security interests, the qualified privilege for Jaw enforcement files, see n 33 infra, and for\nsensitive advisory or deliberative communications, provides a more appropriate focus for our analysis.\n\n484\n\n\x0cAttorney General re: The Constitutional Privilege for Executive Branch Deliber\xc2\xad\nations: The Dispute with a House Subcommittee over Documents Concerning\nGasoline Conservation Fee\xe2\x80\x9d (Jan. 18, 1981) (hereafter Hannon Memorandum);\nRehnquist Testimony, supra. 8 It is premised on the need to discuss confidential\nmatters which arise within the Executive Branch and to assist the President in the\ndischarge of his constitutional powers and duties, by ensuring discussion that is\nfree-flowing and frank, unencumbered by fear of disclosure or intrusion by the\npublic or the other branches of government. The President and those who assist\nhim require candid advice on the wide range of issues which confront the\nExecutive, and such candid advice may not be forthcoming if Cabinet advisers or\ntheir aides must anticipate disclosure of the advice rendered by them and the\npotential public or legislative criticism which might result therefrom.\nA unanimous9 Supreme Court in United States v. Nixon, supra, affirmed the\nconstitutional underpinnings of the privilege, recognizing the \xe2\x80\x9c protection of\ncommunications between high Government officials and those who advise and\nassist them in the performance of their manifold duties\xe2\x80\x9d as supported by the\ndoctrine of separation of powers, and by historic practice.10The Court described\nthis constitutional and historic basis as \xe2\x80\x9c too plain to require further discussion.\xe2\x80\x9d\nId. at 705. See also Senate Select Committee, supra. The Court went on to state\nthat \xe2\x80\x9c human experience teaches that those who expect public dissemination of\ntheir remarks may well temper candor with a concern for appearances and for\ntheir own interests to the detriment of the decisionmaking process.\xe2\x80\x9d United\nStates v. Nixon, supra at 705. Such \xe2\x80\x9c temper[ed] candor\xe2\x80\x9d in presidential ad\xc2\xad\nvisers\xe2\x80\x99 deliberations clearly would impede the President\xe2\x80\x99s performance of his\nconstitutional duty to exercise the executive powers described in Art. II, \xc2\xa7 3 of\nthe Constitution. See Nixon v. Administrator c f General Services, supra; United\nStates v. Nixon, supra.\nThe Supreme Court and lower federal courts have made clear that the presump\xc2\xad\ntion of confidentiality accorded presidential communications is intended to\nprotect not only the substance of sensitive communications between the President\n8 See generally Rankin, Assistant Attorney General, Office of Legal Counsel, \xe2\x80\x9c Memorandum for the Attorney\nGeneral re. Secrecy of Cabinet Proceedings and Papers\xe2\x80\x9d at 3 (Oct 15, 1954)*\n[T]he special and perhaps most significant aspect of [Cabinet members\xe2\x80\x99] office is that of trusted\nadviser to the C hief Executive in the affairs of the Nation, a relationship which cannot long be\nmaintained with respect to those feeling themselves at liberty to make unauthorized disclosures of\ninformation imparted to them at Cabinet meetings in strict confidence, and accordingly . . . each\nmember, to retain the confidence of the President, must constantly bear in mind the overriding need\nfor scrupulous observance of the secrecy o f Cabinet proceedings and papers\n9 Justice Rehnquist did not participate in this decision 418 U.S. at 685\n10 The Court noted that the 1787 Constitutional Convention had been conducted by the Framers in complete\nprivacy, and that the records of the Convention were sealed for more than 30 years thereafter. 418 U S at 705, n 15\nSee 1 M Farrand,The Records O fThe Federal Convention of 1787, pp. xi-xxv (1911),3 Stat. 475, 15th Cong , 1st\nSess , Res. 8 (1818). See also C Warren, The Making Of The Constitution 134\xe2\x80\x9439 (1937)\nThe need for confidential deliberations is not unique to the Executive Branch The Framers recognized that some\ncongressional deliberations would of necessity be privileged from publication. Art. I, \xc2\xa7 5, cl 3, or from question\xc2\xad\ning beyond the House or Senate floor, Art. I, \xc2\xa7 6, cl I. Similarly, judicial deliberations, as well as discussions\nbetween judges and their law clerks, are undoubtedly privileged, although neither the Executive nor the Legislative\nBranches has ever attempted to challenge the nght of courts to withhold such information. See generally Nixon v.\nSirica, 487 F.2d 700, 717 (D C Cir. 1973) (en banc); Soucie v. David. 448 F 2d 1067, 1 0 8 0 -8 1 (D C Cir 1971)\n(Wilkey, J., concum ng), Henkin, \xe2\x80\x9c The Right to Know and the Duty to Withhold. The Case of the Pentagon\nfcipers,\xe2\x80\x9d 120 U. Pa L. Rev 271, 274 (1971)\n\n485\n\n\x0cand his advisers but the integrity of the decisionmaking process within the\nExecutive Branch as well." See Nixon v. Administrator of General Services,\nsupra; Senate Select Committee, supra; Nixon v. Sirica, 487 F.2d 700 (D.C. Cir.\n1973) (en banc). See also 1981 Attorney General Opinion supra; Harmon\nMemorandum, supra. It is these concerns which justify the invocation of\nexecutive privilege by the President, or, where appropriate, the heads of ex\xc2\xad\necutive departments, as well as the \xe2\x80\x9c deliberative process\xe2\x80\x9d privilege, which may\nbe claimed by any federal agency pursuant to exemption 5 of the Freedom of\nInformation Act, 5 U.S.C. \xc2\xa7 552(b)(5), to withhold documents requested by\nmembers of the public.12\nB . Lim itations on the Scope c f the Privilege\n\nNotwithstanding the necessity for confidentiality in executive deliberations,\nthe privilege against their disclosure to Congress and the courts is qualified, in\nboth scope and application. First, the executive privilege for intragovemmental\ndeliberations does not protect materials the disclosure of which would not\nimplicate or hinder the Executive Branch\xe2\x80\x99s decisionmaking processes. United\nStates v. Nixon, supra. Thus, factual, nonsensitive materials\xe2\x80\x94 communications\nfrom the Attorney General which do not contain advice, recommendations,\ntentative legal judgments, drafts of documents, or other material reflecting\ndeliberative or policymaking processes\xe2\x80\x94 do not fall within the scope of materials\nfor which executive privilege may be claimed as a basis of nondisclosure. C f,\ne .g ., NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); Taxation With\nRepresentation v. IRS, 646 F.2d 666 (D.C. Cir. 1981); Coastal States Gas Corp.\nv. D epartm ent c f Energy, 617 F.2d 854, 866-69 (D.C. Cir. 1980).13\nSecond, even in cases involving sensitive deliberative materials for which a\nclaim of privilege may be appropriate, the executive interest in nondisclosure\nmust be balanced against the needs of the requesting branch before the validity of\nthe claim of privilege can be determined. It is in these cases of potential conflict\nand competing claims of legitimate need by each branch that the separation of\nn In its analysis of executive privilege in U nited States v. Nixon, supra, the Supreme Court discussed the role of\nconfidentiality among presidential advisers and concluded:\nThe expectation o f a President to the confidentiality of his conversations and correspondence . .\nis [grounded on] the necessity for protection of the public interest in candid, objective, and even\nblunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must\nbe free to explore alternatives in the process of shaping policies and making decisions and to do so in\naw ay m any would be unwilling to express except privately. These are the considerations justifying a\npresumptive privilege for Presidential communications. The privilege is fundamental to the opera\xc2\xad\ntion o f Government and inextricably rooted in the separation of powers under the Constitution.\n418 U S. at 708 (footnote omitted).\n12 The deliberative process privilege will be discussed infra in part n A.\n13 The standard for nondisclosure under a claim of executive privilege is analogous to the \xe2\x80\x9c deliberative process\xe2\x80\x9d\nprivilege codified in the Freedom o f Information Act, 5 U .S.C . \xc2\xa7 552(b)(5), which exempts predecisional and\ndeliberative documents from the general disclosure mandate o f the Act. See generally McClelland v Andrus, 606\nF.2d 1278,1287 n .5 4 (D C. Cir. 1979) However, Congress may not expand the public\'s statutory right todisclosure\nunder FOIA beyond those limits set, in any given case, by the constitutional doctrine of executive privilege, Soucie\nv. David, 448 F.2d 1067, 1071-72, n 9, 1081-83 (D.C Cir. 1971); conversely, because of its constitutional basis\nindependent of FOIA, Congress may not lim it the scope of executive pnvilege by altering the standards for\ndisclosure under FOIA. Id.\n\n486\n\n\x0cpowers principle on occasion must yield to the principles of \xe2\x80\x9c a workable\ngovernment\xe2\x80\x9d \xe2\x80\x94 \xe2\x80\x9cseparateness but interdependence, autonomy but reciprocity.\xe2\x80\x9d\nUnited States v. Nixon, supra at 707 (quoting Youngstown Sheet & Tube C o. v.\nSawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). These principles\nrecognize a \xe2\x80\x9c spirit of dynamic compromise\xe2\x80\x9d among the coordinate branches\nwhen a conflict in authority arises\xe2\x80\x94 a spirit which requires each branch to \xe2\x80\x9c take\ncognizance of an implicit constitutional mandate to seek optimal accommodation\nthrough a realistic evaluation of the needs of the conflicting branches in a\nparticular fact situation.\xe2\x80\x9d United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir.\n1977). This duty to recognize and accommodate the legitimate needs of the other\nbranches was examined in its constitutional context by the D.C. Circuit in United\nStates v. AT&T, id. at 130 (footnote omitted):\n[I]t was a deliberate feature of the constitutional scheme to leave\nthe allocation of powers unclear in certain situations . . . [Thus,]\nthe resolution of conflict between the coordinate branches in these\nsituations must be regarded as an opportunity for a constructive\nmodus vivendi, which positively promotes the functioning of our\nsystem. The Constitution contemplates such accommodation.\nNegotiation between the two branches should thus be viewed as a\ndynamic process affirmatively furthering the constitutional\nscheme.\nSee also 1981 Attorney General Opinion, supra, 5 Op. O.L.C. at 30 (\xe2\x80\x9cThe\n\naccommodation required is not simply an exchange of concessions or a test of\npolitical strength. It is an obligation of each branch to make a principled effort to\nacknowledge, and if possible to meet, the legitimate needs of the other branch\xe2\x80\x9d ).\nThe more generalized the executive interest in withholding the disputed\ninformation, the more likely it is that the claim of privilege will yield to a\nspecific, articulated need related to the effective performance by the coordinate\nbranches of their constitutionally assigned functions. Conversely, the more\nspecific the need for confidentiality, and the less specific the articulated need of\nthe requesting branch for the information, the more likely it is that the Ex\xc2\xad\necutive\xe2\x80\x99s need for confidentiality will prevail. Nixon v. Administrator cf G eneral\nServices, supra; United States v. Nixon, supra. See generally 1981 Attorney\nGeneral Opinion, supra; Harmon Memorandum, supra. Thus, in determining\nwhether to assert the privilege, the Executive, in the first instance, must balance\nthe \xe2\x80\x9c public\xe2\x80\x9d interest14 inherent in the \xe2\x80\x9c general privilege of confidentiality of\nPresidential communications in performance of the President\xe2\x80\x99s responsibilities\xe2\x80\x9d\nagainst the national or public interest in disclosure, as determined by the ability\n14 The \xe2\x80\x9c public\xe2\x80\x9d interest in nondisclosure derives from the recognized value which accrues to the public from an\neffective executive decisionmaking process, supported by the exchange of \xe2\x80\x9c candid, objective, and even blunt or\nharsh op in io n s/\' U nited States v. Nixon, supra at 708, and fostered by ensuring the confidentiality of such opinions.\nNixon v. Sirica, supra at 717 See also McClelland v. Andrus, 606 F.2d 1278, 1287n.55(D .C Cir 1979) (citations\nomitted) (recognizing the \xe2\x80\x9c compelling public [interest in] confidentiality\xe2\x80\x9d which is \xe2\x80\x9c [n]owhere\nmore vitally\ninvolved than in the fidelity of the sovereign\xe2\x80\x99s decision and policy making resources \'") See generally Rehnquist\nTestimony, supra\n\n487\n\n\x0cof the requesting branch responsibly to fulfill its constitutional duties without the\nassistance provided by the requested documents. United States v. Nixon, supra,\n418 U.S. at 706, 711\xe2\x80\x94712. See Nixon v. Sirica, supra, 487 F.2d at 716-17. In\nmaking such a determination, each document\xe2\x80\x94 and the role that it plays in the\ndecisionmaking process\xe2\x80\x94 must be examined individually. Playboy Enterprises\nv. Departm ent o f Justice, 677 F.2d 931, 935 (D.C. Cir. 1982); Coastal States,\nsupra, 617 F.2d at 867.\nIn the case of Congress, the grant of legislative power in Article I of the\nConstitution implies a requirement that Congress have access to pertinent infor\xc2\xad\nmation, as well as the authority to summon witnesses and to compel the\nproduction of needed evidence, as a prerequisite to the proper performance of its\nlegislative function. Jurney v. MacCracken, 294 U.S. 125 (1935); McGrain v.\nDaugherty, 273 U.S. 135 (1927). See generally Rehnquist Testimony, supra.\nCongress\xe2\x80\x99 duty to investigate and inform itself of matters which may involve the\nExecutive is very broad, extending \xe2\x80\x9c over the whole range of the national interests\nconcerning which Congress might legislate or decide upon due investigation not\nto legislate.\xe2\x80\x9d Barenblatt v. United States, 360 U.S. 109, 111 (1959). See also\nE astland v. U nited States Servicemen\xe2\x80\x99s Fund, 421 U.S. 491, 504\xe2\x80\x9407 (1975);\nWatkins v. United States, 354 U.S. 178, 187 (1957). See generally Cox, \xe2\x80\x9c Ex\xc2\xad\necutive Privilege,\xe2\x80\x9d 122 U. Pa. L. Rev. 1383, 1426 (1974). This broad-based\npower of inquiry includes matters requiring new or remedial legislation, appro\xc2\xad\npriations of funds, congressional probes into various governmental departments\nto expose corruption, inefficiency, or waste, as well as the administration of\nexisting laws or proposed statutes. Yet, these very sources of Congress\xe2\x80\x99 power to\nobtain information also outline the limits of that power: Congress may only\ninquire into those matters on which it may potentially legislate or appropriate\xe2\x80\x94 it\nmay not inquire into those matters \xe2\x80\x9c which are within the exclusive province\xe2\x80\x9d of\nthe Executive or the Judiciary. Barenblatt, supra at 112. See Watkins, supra.\nNevertheless, the validity of a claim of privilege for documents demanded by\nCongress in the performance of its legitimate legislating functions, including the\n\xe2\x80\x9c oversight\xe2\x80\x9d function, can only be determined by balancing the particular inter\xc2\xad\nests of the Legislative and Executive Branches against each other in each case, in\nlight of the possibility of accommodation. Senate Select Committee, supra .\'5\n15 See. e g ., 1981 Attorney General Opinion, supra, discussing the relatively weak congressional interest in\nobtaining predecisional, deliberative Executive Branch documents in the context of Congress\' performance of its\ngeneral \xe2\x80\x9c oversight" function, as compared to its consideration o f specific legislative proposals\nAt the stage of oversight, the congressional interest is a generalized one of ensuring that the laws are\nwell and faithfully executed and of proposing remedial legislation if they are not. The information\nrequested is usually broad m scope and the reasons for the request correspondingly general and\nvague. In contrast, when Congress is exam ining specific proposals for legislation, the information\nwhich Congress needs to enable it to legislate effectively is usually quite narrow in scope and the\nreasons for obtaining that information correspondingly specific. A specific, articulated need for\ninformation will weigh substantially more heavily in the constitutional balancing than a generalized\ninterest in obtaining information\n[Moreover,l the congressional oversight interest will support a demand for predecisional. deliber\xc2\xad\native documents in the possession of the Executive Branch only in the most unusual circumstances It\nis important to stress that congressional oversight of Executive Branch actions is justifiable only as a\nmeans of facilitating the legislative task of enacting, amending, or repealing laws When such\n\xe2\x80\x9c oversight\xe2\x80\x99\xe2\x80\x9d is used as a means of participating directly in an ongoing process of decisionmaking\nC onim ued\n\n488\'\n\n\x0cSimilarly, with respect to judicial functions, an evaluation must be made of the\nimpact of a successful claim of executive privilege on the ability of the Judiciary\nto perform effectively its duties of fair adjudication of controversies and supervi\xc2\xad\nsion of grand jury investigations. See United States v. Nixon, supra; Nixon v.\nSirica, supra. As is the case when the privilege is asserted against the Legislative\nBranch, if the information withheld by the Executive is \xe2\x80\x9c demonstrably critical to\nthe responsible fulfillment\xe2\x80\x9d of the Judiciary\xe2\x80\x99s functions, a generalized claim of\nprivilege must fail. Nixon v. Sirica, 487 F.2d at 717 (\xe2\x80\x9cthe general confidentiality\nprivilege must recede before the grand jury\xe2\x80\x99s showing . . . that the subpoenaed\n[information] contain[s| evidence peculiarly necessary to the carrying out of [its]\nvital function.\xe2\x80\x9d ). Cf. Senate Select Committee, 498 F.2d at 731.\nNotwithstanding these limitations on the scope of the privilege for Executive\nBranch communications, it is not essential that the communications for which the\nprivilege is claimed have been directed to or emanated from the President\nhimself. See Nixon, \xe2\x80\x9c Memorandum for the Heads of Executive Departments and\nAgencies\xe2\x80\x9d (March 24, 1969). See also United States v. AT&T, supra; Harmon\nMemorandum, supra. The underlying rationale of the privilege to foster robust\nand honest debate in the presidential decisionmaking process is as applicable to\nExecutive Branch advisers both within and outside the immediate Office of the\nPresident as it is to the President himself. The Supreme Court, in United States v.\nNixon, supra, recognized the need for the President \xe2\x80\x9cand those who assist him\n[to] be free to explore alternatives in the process of shaping policies and making\ndecisions and to do so in a way many would be unwilling to express except\nprivately.\xe2\x80\x9d 418 U.S. 708 (emphasis supplied). In addition, this office has recently\nexpressed the view that because of the importance of the executive department\nheads and their advisers to the President and his closest advisers in presidential\ndecisionmaking, it would be \xe2\x80\x9c artificial\xe2\x80\x9d to draw a rigid and inflexible line\nbetween the executive departments and the President\xe2\x80\x99s Office, limiting the reach\nof the constitutional privilege only to the latter. Harmon Memorandum, supra at\n13-14.16 Thus, memoranda prepared by the Attorney General or his assistants\ncontaining legal or policy advice on issues under consideration by the President\nand his advisers may be properly encompassed by a claim of executive privilege.\nThis category of documents would include, for example, staff level advice to\nAssistant Attorneys General concerning matters on which the President has\nwithin the Executive Branch, it oversteps the bounds of the proper legislative function Restricted to\nits proper sphere, the congressional oversight function can almost always be properly conducted with\nreference to information concerning decisions which the Executive Branch has already reached\nCongress will have a legitimate need to know the preliminary positions taken by Executive Branch\nofficials dunng internal deliberations only in the rarest of circumstances.\n5 Op O L.C at 29 (citations omitted)\n16 Nevertheless, former Assistant Attorney General Harmon\xe2\x80\x99s January 18. 1981, memorandum recognized that\nthere exist \xe2\x80\x9c differences of degree\xe2\x80\x9d of sensitivity inherent in the broad category of executive deliberations. The\nmemorandum pointed out that in deciding whether to claim the privilege, it is especially important to protect the\nintegrity of deliberations involving the President himself and his closest advisers.\nIn accommodating Congress\'s legitimate need for certain information, the executive branch should\nbe least willing to reveal deliberations directly involving the President and his closest advisers, and\nmore willing to disclose material from within the executive departments.\nHarmon Memorandum, supra, at 13\n\n489\n\n\x0csought advice, staff level advice to officials in the Office of the President, notes of\nmiddle level staff meetings concerning issues before the President or members of\nhis staff, and tentative legal judgments or draft policy statements prepared for the\nPresident or his staff.\nFor purposes of invoking executive privilege, communications from the At\xc2\xad\ntorney General, qua the President\xe2\x80\x99s chief legal adviser, should be analyzed in the\nsame fashion as communications from other Cabinet advisers and trusted highlevel officials. Unlike the attomey-client privilege, which focuses exclusively on\ncommunications of a legal advisory nature, executive privilege may be claimed\nfor any nonfactual, sensitive deliberative communication for which there exists a\nsufficiently strong public interest in nondisclosure. While it is unlikely that very\nmany of the Attorney General\xe2\x80\x99s communications will be in the category of\ncommunications with regard to which claims of privilege are entitled to the\nstrictest deference, e .g ., military, diplomatic, or sensitive national security\nmatters, his communications to the President may nevertheless demand greater\nconfidentiality than those of some other Cabinet advisers, because of the nature of\nthe Attorney General\xe2\x80\x99s responsibilities to the Executive and his special areas of\nexpertise, e .g ., legal advice and law enforcement. See Harmon Memorandum,\nsupra, at 2 6 .17\nUK. The Freedom of Information! Act\xe2\x80\x94 Exemption 5: The Deliberative\nProcess Privilege amid the Attonmey-Cliemt Privilege\nExemption 5 of the Freedom of Information Act (FOIA)18 protects from\ncompulsory disclosure to the public, government materials which are \xe2\x80\x9c inter\xc2\xad\nagency or intra-agency memorandums or letters which would not be available by\nlaw to a party other than an agency in litigation with the agency.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 552(b)(5). This exemption thus codifies the traditional common law privileges\nafforded certain documents in the context of civil litigation and discovery, see\nFed. R. Civ. P. 26; Fed. R. Evid. 501, including the executive \xe2\x80\x9c deliberative\n17 In his memorandum to the Attorney G eneral regarding a congressional subcommittee\xe2\x80\x99s demand for certain\ndocum ents from the Department of Energy, Assistant Attorney General H annon advised:\n[T]o whatever extent the customary attomey-client privilege applies to government attorneys, we\nbelieve that the reasons for the constitutional privilege against the compelled disclosure of executive\nbranch deliberations have special force when legal advice is involved None of the President\xe2\x80\x99s\nobligations is more solemn than his duty to obey the law. The Constitution itself places this\nresponsibility on him , in his oath of office and in the requirement of article II, section 3 that \xe2\x80\x9c he shall\ntake care that the laws be faithfully executed " Because this obligation is imposed by the Constitution\nitself, Congress cannot lawfully undermine the President\xe2\x80\x99s ability to carry it out. Moreover, legal\nmatters are likely to be among those o n which high government officials most need, and should be\nencouraged to seek, objective, expert advice. As crucial as frank debate on policy matters is, it is\neven more important that legal advice be \xe2\x80\x9c candid, objective, and even blunt or harsh,\xe2\x80\x9d see United\nStates v. Nixon, 418 U .S. 683,708 (1974), where necessary. Any other approach would jeopardize\nnot ju st particular policies and programs but the principle that the government must obey the law. For\nthese reasons, it is critical that the President and his advisers be able to seek, and give, candid legal\nadvice and opinions free o f the fear o f compelled disclosure\nHarmon M emorandum , supra, at 26\n18 While other exemptions to the FOIA occasionally may be applicable to the types of communications discussed\nin this memorandum, e g ., the exemption 7 privilege for law enforcement investigatory records, see 5 U.S.C.\n\xc2\xa7 552(b)(7) discussed in part III C ., infra, because of the Attorney General\xe2\x80\x99s advisory relationship to the President,\nmost such communications will come within the privileges embraced by exemption 5.\n\n490\n\n\x0cprocess\xe2\x80\x9d privilege, NLRB v. Sears, supra; EPA v. Mink, 410 U.S. 73 (1973);\nTaxation With Representation v. IRS, 646 F.2d 666 (D.C. Cir. 1981); the attomeyclient privilege, Brinton v. Department c f State, 636F .2d600,603-04 (D.C. Cir.\n1980), cert, denied, 452 U.S. 905 (1981); M ead Data Central v. United States\nDepartment c f Air Force, 566 F.2d 242, 252\xe2\x80\x9455 (D.C. Cir. 1977); and the\nattorney work-product privilege,NLRB v. Sears, Roebuck& Co., 421 U.S. 132,\n154 (1975); Bristol-Myers Co. v. FTC, 598 F.2d 18 (D.C. Cir. 1978), as applied\nto document requests of government agencies from members of the public. See\nalso Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir.\n1980). AH of these privileges encompassed by exemption 5 may be claimed, in\nappropriate circumstances, to protect communications between the Attorney\nGeneral\xe2\x80\x99s Office and the Office of the President from compulsory disclosure to\nmembers of the press and the general public.19 Nevertheless, even though the\nFOIA exemptions noted above are analogous to the common law evidentiary\nprivileges which have been incorporated by implication into the Act, the stan\xc2\xad\ndards for asserting the evidentiary privileges can serve only as a \xe2\x80\x9c rough guide\xe2\x80\x9d\nto the courts in determining the validity of FOIA exemption claims. This is so\nbecause\ndecisions as to discovery are usually based on a balancing of the\nrelative need of the parties, and standards vary according to the\nkind of litigation involved. Furthermore, the most fundamental\ndiscovery and evidentiary principle, relevance to the issues being\nlitigated, plays no part in FOIA cases.\nCoastal States, supra, at 862, citing EPA v. Mink, 410 U.S. 73, 86 (1973). See\nalso Playboy Enterprises v. Department c f Justice, 677 F.2d 931, 936 (D.C. Cir.\n1982); M cClelland v. Andrus, 606 F.2d 1278, 1287 nn. 54, 55 (D.C. Cir.\n\n1979).20\nA. \xe2\x80\x9cDeliberative Process \xe2\x80\x9d Privilege\n\nThe \xe2\x80\x9c deliberative process\xe2\x80\x9d privilege under FOIA is substantially similar in\nscope and purpose to the deliberative process aspect of executive privilege,\n19 The exemptions contained in the Freedom of Information Act do \xe2\x80\x9c not [provide] authonty to withhold\ninformation from Congress." 5 U .S.C . \xc2\xa7 552(c)\n20 In explaining the relationship between the privileges under FOIA and the evidentiary privileges in litigation,\nthe D C. Circuit stated:\n[T]he analysis contained in Exemption 5 cases is applicable [to common law dtscovery cases]\nbecause Exemption 5 exempts only those documents normally privileged in the civil discovery\ncontext NLRB v Sears. Roebuck& Co , 421 U .S. 132, 148-49 . . (1975);EPA v Mink, . . . 410\nU S .a t8 5 -8 6 . . (1973); Vaughn v Rosen,\n523F.2dat 1143(1975). Thus in effect Exemption\n5 is co*extensive with the common law discovery privileges: Exemption 5 shields from a member of\nthe public seeking a document under FOIA that which would be shielded from a litigant seeking\ndiscovery from an agency. There is, however, an additional factor to be considered in the discovery\ncontext that is not considered in the FOIA context .\nWhen a party seeks discovery against the\nGovernment and the Government interposes a claim of privilege, it is appropriate for the court to\nconsider the litigant\'s need for the material. But when a member of the public seeks access to material\nunder FOIA and the Government claims that the material comes within the purview of Exemption 5,\ndisclosure is permitted of that which would \xe2\x80\x9c routinely be disclosed" in private litigation. H.R Rep.\nNo 1497, 89th Cong , 2d Sess .10(1966). Stated differently, the extent c f the requester\'s need is not\nconsidered in the FOIA context\nMcClelland v. Andrus, supra, at 1287, n.54 (emphasis supplied).\n\n491\n\n\x0cdiscussed above. Although both privileges apply generally to the same types of\ndocuments, the primary differences between the two privileges lie in their\nrespective applications. First, executive privilege traditionally has been invoked\nonly by the President to shield documents from disclosure to Congress, and by\nthe President or the head of any executive department or agency in judicial\nproceedings.21 FOIA exemptions, in contrast, may be claimed by the head, or\nother designated official, of any government agency in possession of documents\nfor which a request has been made by a member of the public. Second, as noted\nabove, claims of executive privilege for deliberative documents must be balanced\nagainst the public interest in disclosure, which is frequently analyzed in terms of\nthe requesting government institution\xe2\x80\x99s ability to perform its functions responsi\xc2\xad\nbly\xe2\x80\x94 whether legislative investigations or judicial resolution of disputes\xe2\x80\x94 with\xc2\xad\nout gaining access to the disputed materials. In considering the claims of\nexemptions under FOIA, however, the requestor\xe2\x80\x99s interest in or need for the\ndocuments is irrelevant. See H .R. Rep. No. 1497, 89th Cong., 2d Sess. 10\n(1966); M cC lelland v. Andrus, supra. Notwithstanding these differences, the\nanalyses involved in the applications of the two privileges are very similar.\nAs in the case of executive privilege, the \xe2\x80\x9c deliberative process\xe2\x80\x9d privilege\nembraced by exemption 5 was intended to protect the integrity of the decision\xc2\xad\nmaking process and to promote full and frank deliberations during that process.\nHowever, consistent with the strong disclosure policy of FOIA, the privilege is to\nbe considered \xe2\x80\x9c \xe2\x80\x98as narrowly as [is] consistent with efficient Government opera\xc2\xad\ntion.\xe2\x80\x99\xe2\x80\x9d C oastal States, supra, 617 F.2d at 868, quoting from S. Rep. No. 813,\n89th Cong., IstS ess. 9 (1965). S ee also FBI v. Abramson, 456 U.S. 615,629-32\n(1982); Departm ent of Air Force v. Rose, 425 U.S. 352, 360-62 (1976). The\nprivilege exempts documents which are advisory or recommendatory in nature,\nreflecting \xe2\x80\x9c the give-and-take of the consultative process . . ., weighing the pros\nand cons of agency adoption of one viewpoint or another,\xe2\x80\x9d Coastal States, supra,\n617 F.2d at 866, and \xe2\x80\x9c other subjective documents that reflect the personal\nopinions of the writer prior to the agency\xe2\x80\x99s adoption of a policy.\xe2\x80\x9d Taxation With\nRepresentation , supra, 646 F.2d at 677. See also NLRB v. Sears, supra, 421 U.S.\nat 150; B rintonv. Department of State, supra, 636F.2dat604\xe2\x80\x9406. In the words of\nthe D.C. Circuit, which has developed a considerable body of law construing the\ndeliberative process privilege:\n[The privilege] was created to protect the deliberative process of\nthe government, by ensuring that persons in an advisory role\nwould be able to express their opinions freely to agency decision\xc2\xad\nmakers without fear of publicity. . . . Such consultations are an\nintegral part of [an agency\xe2\x80\x99s] deliberative process; to conduct this\nprocess in public view would inhibit frank discussion of policy\nmatters and likely impair the quality of decisions.\n21 See nn. 4, 5, supra.\n\n492\n\n\x0cRyan v. Department of Justice, 617 F.2d 781, 789\xe2\x80\x9490 (D.C. Cir. 1980) (footnote\n\nomitted). In addition, the privilege was designed to\nprotect against premature disclosure of proposed policies before\nthey have been finally formulated or adopted; and to protect\nagainst confusing the issues and misleading the public by dis\xc2\xad\nsemination of documents suggesting reasons and rationales for a\ncourse of action which were not in fact the ultimate reasons for the\nagency\xe2\x80\x99s action.\nCoastal States, supra, 617 F.2d at 866.\n\nApplying this standard to the materials discussed in this memorandum,\ndocuments reflecting the internal details involved in the preparation of formal\nAttorney General opinions or Office of Legal Counsel opinions, as well as the\nmore informal predecisional working papers which pass between and within the\nAttorney General\xe2\x80\x99s Office and the Office of the President, would be included in\nthis category of deliberative documents protected by exemption 5. See, e .g .,\nBrinton v. Department c f State, supra (holding that opinions prepared by the\nOffice of the Legal Adviser for the Secretary of State fell within the deliberative\nprocess privilege of exemption 5).\nThe courts have held, however, that \xe2\x80\x9c deliberative process\xe2\x80\x9d privilege does not\nprotect documents which reflect final opinions, statements of reasons supplying\nthe bases for decisions, or policies actually adopted, or documents that otherwise\nconstitute the \xe2\x80\x9c working law\xe2\x80\x9d of an agency. See NLRB v. Sears, supra, 421 U.S.\nat 152\xe2\x80\x9453; Taxation With Representation, supra, 646 F.2d at 678; Coastal States,\nsupra, 617 F.2d at 866-68. The rationale underlying the \xe2\x80\x9c final opinion\xe2\x80\x9d excep\xc2\xad\ntion to the deliberative process privilege is to prevent agencies from developing a\nbody of \xe2\x80\x9c secret law\xe2\x80\x9d veiled by the exemption 5 privilege\xe2\x80\x94 the maintenance of\nwhich \xe2\x80\x9c would weigh heavily against the public interest.\xe2\x80\x9d Sterling Drug, Inc. v.\nFTC, 450 F.2d 698, 715 (D.C. Cir. 1971). See Brinton v. Department c f State,\nsupra, 636 F.2d at 605. Thus, decision documents of the Office of the President,\ndeliberative materials \xe2\x80\x9c incorporated\xe2\x80\x9d into those documents, and opinions of the\nAttorney General which have been \xe2\x80\x9c incorporated\xe2\x80\x9d into the President\xe2\x80\x99s final\ndocument, would be subject to disclosure under FOIA. See EPA v. Mink, 410\nU.S. 73 (1973).22\n22 \xe2\x80\x9c Final opinions\xe2\x80\x9d of the Office of Legal Counsel or the Attorney General, which were written for the President\nand form part of the basis of the President\xe2\x80\x99s final action, but which have not been \xe2\x80\x9c incorporated\xe2\x80\x9d into the President\'s\nfinal decision document, would be protected from disclosure under exemption 5 s pnvilege for attomey-chent\ncommunications, as well as the deliberative process pnvileges. See Brinton v D ep\'t c f State, supra. M ead Data\nCentral, supra\nIf the \xe2\x80\x9c final opinions\xe2\x80\x9d from the Attorney General\xe2\x80\x99s Office are nor of a legal advisory nature\xe2\x80\x94 or are otherwise\nineligible for a claim of attomey-client pnvilege\xe2\x80\x94 an analysis must be made regarding the purpose of the opinion\ndocuments in issue If the opinion is a predecisional document\xe2\x80\x94 i.e.. the document presents the Attorney G eneral\xe2\x80\x99s\nviews on a particular matter which will be considered by the President in taking final executive action, or in the case\nwhere final executive action has already been taken but the Attorney General submits a document which \xe2\x80\x9c provide[s]\nguides for decisions o f similar or analogous cases ansing in the future\xe2\x80\x9d\xe2\x80\x94 the Supreme Court has stated that the\ndocument is exempted from FOIA\xe2\x80\x99s disclosure mandate as a deliberative document NLRB v Sears, supra, 421\nU.S. at 152, n. 19. If the Attorney General\xe2\x80\x99s \xe2\x80\x9c final opinion\xe2\x80\x9d is postdecisional, as are most final opinions\xe2\x80\x94 i e.,\nC ontinued\n\n493\n\n\x0cNor does the privilege extend to documents of a purely factual nature. In the\ncase of documents of a mixed factual/deliberative nature, factual materials which\ncan reasonably be severed from the deliberative or advisory segments of the\ndocument without compromising the confidential remainder of the document\nmust be disclosed. EPA v. Mink, supra, 410 U.S. at 91. However, \xe2\x80\x9c factual\nsegments [of advisory documents] are protected from disclosure as not being\npurely factual if the manner of selecting or presenting those facts would reveal the\ndeliberate process, or if the facts are \xe2\x80\x98inextricably intertwined\xe2\x80\x99 with the policy\xc2\xad\nmaking process.\xe2\x80\x9d Ryan v. D epartment c f Justice, supra, 617 F.2d at 790\n(footnotes omitted). See Playboy Enterprises v. Department c f Justice, supra.23\nB. Attorney-Client Privilege\n\nExemption 5 of FOIA also embraces the common law evidentiary privilege for\nattomey-client communications. 5 U.S.C. \xc2\xa7 552(b)(5); Fed. R. Civ. P. 26; Fed.\nR. Evid. 501.24See NLRB v. Sears, supra , 421 U.S. at 154 \\M eadD ata Central,\nsupra. The attomey-client privilege protects confidential disclosures of a client to\nhis or her attorney, which were made in order to obtain legal assistance and not for\nthe purpose of committing a crime or tort. 8 Wigmore, Evidence \xc2\xa7 2290-2329\ncommunications which \xe2\x80\x9c look[] back on and explain[]\na decision already reached or a policy already\nadopted\xe2\x80\x9d \xe2\x80\x94 the opinion would not be exempt from FOIA\xe2\x80\x99s disclosure mandate, since disclosure would pose \xe2\x80\x9c a\nnegligible risk o f denying to agency decisionmakers the uninhibited advice which is so important to agency\ndecisions.\xe2\x80\x9d Id.\nIn its companion case lo NLRB v Sears, supra. Renegotiation Bd. v Grumman Aircraft Engineering Corp., 421\nU S 168, 184-85 (1975), the Court set forth the additional consideration of whether the author of the \xe2\x80\x9c final\nopinion\xe2\x80\x9d possesses decisional authonty with reference to matters addressed in the opinion. Thus, if the subject of\nthe Attorney G eneral\xe2\x80\x99s opinion, or other Department of Justice communication, involves a matter over which the\nOffice of the President has final decisional authority, the opinion necessarily is predecisional, and therefore exempt\nfrom disclosure, even if the opinion represents the \xe2\x80\x9c final\xe2\x80\x9d view o r disposition of the Department of Justice on the\nmatter. O f course, the final action taken by the Office of the President may incorporate the Attorney General\xe2\x80\x99s\nadvisory opinion\xe2\x80\x94 in which case, it would lose its predecisional character and become subject to disclosure See\nalso Brinton v. D ep \'t c f State, supra. 636 F 2d at 605 (holding that legal opinions prepared by the Office of the Legal\nAdviser for the Secretary of State were properly withheld on the ground that the Legal Adviser\'s opinions were not\n\xe2\x80\x9c final opinions\xe2\x80\x9d as contemplated by the FO IA , inasmuch as the Legal Adviser \xe2\x80\x9c has no authority lo make final\ndecisions concerning United States policy\n[,] [i]nstead, his role is to give advice to those in the State\nDepartment who do make the policy decisions.\xe2\x80\x9d ).\n23 The D .C. Circuit recently rejected the D epartm ent\xe2\x80\x99s claim of privilege for a 302-page document prepared by a\ntask force of the Office of Professional Responsibility of the Department of Justice for the Attorney General. The\ndocument reported the results of an eight-month investigation into the circumstances sun-ounding the infiltration of\nan FBI informant into the Ku Klux Klan Playboy Enterprises v. D e p \'t c f Justice, supra, 677 F.2d 931 Against the\nD epartm ent\xe2\x80\x99s claim that the entire report \xe2\x80\x9c reflect[ed] the \xe2\x80\x98choice, weighing and analysis of facts\xe2\x80\x99 by the task force\nand [was] therefore protected as a part of the deliberative process,\xe2\x80\x9d 677 F.2d at 935, ihe court of appeals held that the\nreport was, for the most part, not exempt from disclosure, and remanded to the district court for a determination of\nthose limited portions of the report which were properly exempt, as containing conclusions, recommendations, or\nopinions and were severable from the factual portions of the document The court stated:\nWe are not persuaded by the Department\xe2\x80\x99s argument. Anyone making a report must of necessity\nselect the facts to be mentioned in it; but a report does not become a part of the deliberative process\nmerely because it contains only (hose facts which the person making Ihe report thinks material. If this\nwere not so. every factual report would be protected as p\xc2\xa3rt of the deliberative process.\nId.\n24 The attomey-chent pnvilege is a common law evidentiary pnvilege which has been codified in Rule 501 of the\nFederal Rules o f Evidence and Rule 26 of the Federal Rules o f Civil Procedure for use in civil litigation and\ndiscovery. While the Rules are not applicable to congressional subpoenas, the interests implicated by the attomeyclient pnvilege generally are subsumed under a claim of executive pnvilege when a dispute arises over documents\nbetween the Executive and Legislative Branches, and the considerations of separation of powers and effective\nperformance of constitutional duties determine the validity of the claim of pnvilege\n\n494\n\n\x0c(McNaughton rev. 1961). See Upjohn v. United States, 449 U.S. 383 (1981);\nFisher v. United States, 425 U.S. 391 (1976). Notwithstanding its overall\npurpose to protect the client\xe2\x80\x99s factual disclosures, the privilege has been extended\nby federal courts to include an attorney\xe2\x80\x99s communications to his or her client in\norder to prevent inadvertent disclosure, either directly or by implication, of\ninformation which the client had previously confided to the attorney, as well as to\nfoster the attorney\xe2\x80\x99s ability to give sound and informed professional advice.\nCoastal States, supra, 617 F.2d at 862; Mead Data Central, supra, 566 F.2d at\n254 n.25.\nLike the executive and deliberative process privileges, the attomey-client\nprivilege is designed to encourage full and frank discussions among the persons\nwhose communications are protected and thereby to \xe2\x80\x9c promote [the] broader\npublic interests in the observance of law and administration of justice.\xe2\x80\x9d Upjohn,\nsupra, 449 U.S. at 389. To this end, \xe2\x80\x9c (t]he privilege recognizes that sound legal\nadvice or advocacy . . . depends upon the lawyer\xe2\x80\x99s being fully informed by the\nclient.\xe2\x80\x9d Id. See also M ead Data Central, supra, 566 F. 2d at 252 (\xe2\x80\x9cThe opinion of\neven the finest attorney . . . is no better than the information which his client\nprovides. In order to ensure that a client receives the best possible legal advice,\nbased on a full and frank discussion with his attorney, the attomey-client privilege\nassures him that confidential communications to his attorney will not be disclosed\nwithout his consent.\xe2\x80\x9d ). See generally 2 J. Weinstein and M. Berger, Weinstein\xe2\x80\x99s\nEvidence K 503 (1982).\nAlthough the attomey-client privilege traditionally has been recognized in the\ncontext of private attomey-client relationships, the privilege also functions to\nprotect communications between government attorneys and client agencies or\ndepartments, as evidenced by its inclusion in the FOIA, much as it operates to\nprotect attomey-client communications in the private sector. See Brinton v.\nDepartment c f State, supra, 636 F.2d at 603-04; M ead Data Central, supra, 566\nF.2d at 252-55; Jupiter Painting Contracting Co. v. United States, 87 F.R.D.\n593,598 (E.D. Pa. 1980); Falcone v. Internal Revenue Service, 479 F. Supp. 985,\n989-90 (E.D. Mich. 1979). See also Office of Legal Counsel, \xe2\x80\x9c Memorandum\nfor Helen S. Lessin, Director, Federal Legal Council, re: OLC Policies Regard\xc2\xad\ning Issuance and Release of Opinions\xe2\x80\x9d (Sept. 10, 1980).25\nThe Supreme Court\xe2\x80\x99s recent opinion in Upjohn, supra, analyzing the scope of\nthe corporate \xe2\x80\x9c client\xe2\x80\x9d for purposes of the attomey-client privilege, is helpful to\nour consideration of the privilege in the context of the Attorney General and the\nOffice of the President. In Upjohn, supra, the Court discarded the restrictive\n\xe2\x80\x9c control group\xe2\x80\x9d test26 for determining which communications are within the\nscope of the privilege in a corporate setting, in favor of a broader scope of\n\xe2\x80\x9c client,\xe2\x80\x9d more suited to the purposes of the privilege. The Court noted that the\n25 In addition. Government attorneys, no less than private attorneys, are bound by the ABA Code of Professional\nResponsibility\'s disciplinary rule DR 4\xe2\x80\x94101(B). which provides that a lawyer shall not knowingly reveal a\nconfidence or secret o f his client unless the client consents to such disclosure.\n26 The control group test restricts the definition of \xe2\x80\x9c client\xe2\x80\x9d for purposes of the pnvilege to \xe2\x80\x9c upper-echelon\nmanagement\xe2\x80\x9d officials \xe2\x80\x9c responsible for directing (the client corporation\'s] actions in response to legal advice \xe2\x80\x9d 449\nU.S at 388. 391.\n\n495\n\n\x0cprivilege was designed to protect both the giving of professional advice to those\nwho are charged with the actual implementation of the client corporation\xe2\x80\x99s\npolicies, as well as the communication of information to the attorney sufficiently\nspecific to enable him or her to provide sound, practical, and informed legal\nadvice. Id. at 390. These purposes were frustrated by the narrow scope of\nprivileged communications recognized by the \xe2\x80\x9c control group\xe2\x80\x9d test.\nWhile the Upjohn decision studiously avoided setting forth a precise formula\xc2\xad\ntion of the scope of the attomey-client privilege in the corporate or governmental\nsetting, the Court was nonetheless insistent in its view that application of the\nprivilege had to be determined in each case to serve the purposes of the privilege.\nIn view of the criticism expressed in the Upjohn decision of the control group test,\nit is likely that, in most instances, the \xe2\x80\x9c client\xe2\x80\x9d in the context of communications\nbetween the President and the Attorney General, and their respective aides,\nwould include a broad scope of White House advisers in the Office of the\nPresident. The \xe2\x80\x9c functional\xe2\x80\x9d analysis suggested by Upjohn focuses on whether\nthe privilege would encourage the communication of relevant and helpful infor\xc2\xad\nmation from advisers most familiar with the matters on which legal assistance is\nsought, as well as whether the privilege is necessary to protect and encourage the\ncommunication of frank and candid advice to those responsible for executing the\nrecommended courses of action. A corollary to this expanded concept of the\n\xe2\x80\x9c client,\xe2\x80\x9d which reflects the realities of the governmental setting, is that the\n\xe2\x80\x9c attorney\xe2\x80\x9d whose communications are subject to the attomey-client privilege\nmay, in fact, be several attorneys responsible for advising the \xe2\x80\x9c client\xe2\x80\x9d agency or\ndivision regarding the prudence and propriety of proposed courses of conduct.\nThus, advice given by the various Assistant Attorneys General and their staffs\nmay be subject to the privilege. See, e .g ., Brinton v. Department cf State,\nsu pra.21\n\nNotwithstanding these notions of \xe2\x80\x9c attorney\xe2\x80\x9d and \xe2\x80\x9c client\xe2\x80\x9d which the Court has\nexpanded to implement fully the purposes of the privilege, the actual operation of\nthe privilege continues to be governed by the traditional guidelines and pro\xc2\xad\ncedures.28 As in the traditional attomey-client context, once the privilege has\nattached, only the client, in this case the President or some other high level\nofficial in the Office of the President who is responsible for receiving and acting\non the legal advice, may waive it. Thus, for example, a FOIA request lodged with\nthe Department of Justice for information communicated to the Office of the\nPresident by the Attorney General which is protected by the attomey-client\nprivilege should not be honored unless the Office of the President consents to\nrelease of the information. See Office of Legal Counsel, \xe2\x80\x9c Memorandum for\nHelen S. Lessin,\xe2\x80\x9d supra. See generally Harmon, Memorandum for Patricia M.\n27 Although the Brinton decision was ultimately decided on deliberative process grounds, the attomey-chent\nprivilege aspect of exemption 5 was discussed at length by the court.\n28 See United States v. Anderson, 34 F.R D. 518, 523 (D Colo. 1963), for application of the traditional attomeychent privilege formulation in the governmental context\'\n[T]he documents are privileged insofar as they do not comment or report on information coming\nfrom persons outside the government o r from public documents, or are summaries of conferences\nheld with or in the presence of outsiders, and were produced with the idea of obtaining or receiving\nlegal advice.\n\n496\n\n\x0cWald, Assistant Attorney General, Office of Legislative Affairs, \xe2\x80\x9c Formulation of\nPolicy on Disclosure of Information to Congress\xe2\x80\x9d at 8, 10 (July 19, 1977).\nIn addition, the person seeking to assert the privilege\xe2\x80\x94 either the client or the\nattorney on the client\xe2\x80\x99s behalf\xe2\x80\x94must be able to demonstrate that the confidential\ndisclosures \xe2\x80\x9c might not have been made absent the privilege,\xe2\x80\x9d Fisher v. United\nStates, supra, at 403, and that the underlying facts for which the privilege is\nclaimed have remained confidential. Mead Data Central, supra, at 253. See also\nPermian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981); Brinton v.\nDepartment of State, supra.29 Applying this rule to President-Attomey General\ncommunications, the circulation of advisory documents outside the operative\ncircle of officials responsible for giving or receiving advice in the Office of the\nPresident or the Department of Justice, or, the reporting of factual information\nacquired from persons or sources outside the privileged relationship, would\nconstitute a waiver, whether express or implied, of the privilege with respect to\nthose documents and would subject them to disclosure, unless exempt from the\nFreedom of Information Act pursuant to some other exemption. See Permian\nCorp. v. United States, supra;30Brinton v. Department c f State, supra. Advisory\ndocuments from the Attorney General which have been turned over to con\xc2\xad\ngressional committees are presumed to be no longer confidential and may not be\nthe basis of a claim of attomey-client privilege. See generally Harmon, \xe2\x80\x9c For\xc2\xad\nmulation of Policy on Disclosure of Information to Congress,\xe2\x80\x9d supra.31 See also\nPermian Corp. v. United States, supra, at 1220-22. However, these same\ndocuments may be subject to the deliberative process privilege under exemption\n5.32\n29 The requirement lhat the confidential disclosures for which the privilege is sought have remained confidential\ndoes not preclude the privilege\'s proper attachment lo communications which have been circulated in a limited\nfashion beyond the attorney and the person within the group requesting legal advice. See Upjohn v United States,\nsupra, at 395; Coastal States, supra, at 863; Mead Data Central, supra, at 253 n.24. This broader scope of the\nconfidentiality requirement is particularly appropriate in the corporate and governmental contexts. See discussion,\ninfra\n30 In Permian Corp , supra, the D.C. Circuit held that the voluntary disclosure of confidential materials to a third\nparty outside the privileged relationship, in this case, the SEC, constituted a waiver of the privilege with respect to\nthose documents, notwithstanding the SEC\xe2\x80\x99s agreement to protect the documents from further disclosure. Thus, the\ncourt rejected the rule of \xe2\x80\x9c limited waiver,\xe2\x80\x9d followed by the Eighth Circuit in Diversified Industries, Inc. v.\nMeredith, 572 F 2d 596 (1977) (en banc), and concluded that the pnvilege could no longer be invoked to protect the\ndocuments from being disclosed by the SEC to another government agency*\nThe Eighth Circuit\xe2\x80\x99s \xe2\x80\x9c limited waiver\xe2\x80\x9d rule has little to do with [the] confidential link between the\nclient and his legal advisor Voluntary cooperation with government investigations may be a laudable\nactivity, but it is hard to understand how such conduct improves the attomey-client relationship If the\nclient feels the need to keep his communications with his attorney confidential, he is free to do so\nunder the traditional rule by consistently asserting the privilege, even when the discovery request\ncomes from a \xe2\x80\x9c fnendly\xe2\x80\x9d agency.\n*\n\n*\n\n*\n\n*\n\n*\n\n[T]he attomey-client pnvilege should be available only at the traditional pnce. a litigant who wishes\nto assert confidentiality must maintain genuine confidentiality\n665 F 2 d at 1220-21, 1222 (footnote omitted).\n31 Former Assistant Attorney General H annon suggested that even the \xe2\x80\x9c limited disclosure\xe2\x80\x9d involved in disclos\xc2\xad\ning privileged materials to an executive session of Congress, or in a nonpublic administrative heanng, \xe2\x80\x9c would\nappear to undermine the theoretical predicate of the privilege,\xe2\x80\x9d as applied in the civil discovery context. \xe2\x80\x9c The\npurpose of a privilege is to protect confidential communications necessary to promote certain relationships, once\nthis confidentiality is breached, the rationale for granting the pnvilege no longer applies \xe2\x80\x9d \xe2\x80\x9c Formulation o f Policy\non Disclosure of Information to C ongress,\xe2\x80\x9d supra, at 5 (citations omitted)\n32 There is an additional pnvilege available under exemption 5 which may be invoked, when appropnate, to\nC o n tin u e d\n\n497\n\n\x0cIII. Tlhe \xe2\x80\x9c Governmental\xe2\x80\x9d Evidentiary Privileges\xe2\x80\x94 and Their Freedom off\nInformation Act Counterparts\nThe so-called \xe2\x80\x9c governmental\xe2\x80\x9d evidentiary privileges are common law priv\xc2\xad\nileges, now incorporated into the Federal Rules of Civil Procedure and the\nFederal Rules of Evidence, which have traditionally been available exclusively to\nthe government as a litigant. Daniel, Assistant Attorney General, Civil Division,\n\xe2\x80\x9c Memorandum to All Civil Division Attorneys re: Asserting Claims of Official\nGovernment Privilege in Litigation\xe2\x80\x9d (Nov. 1980). See generally M cClelland v.\nAndrus, supra, at 1286, n.53, quoting Association fo r Women in Science v.\nCalifano, 566 F.2d 339 (D.C. Cir. 1977). These privileges\xe2\x80\x94 the informant\xe2\x80\x99s\nprivilege, the law enforcement investigatory files privilege,33 and the privilege\nfor confidential information on required reports34\xe2\x80\x94supplement the deliberative\nprocess, attomey-client and work-product privileges discussed above which are\navailable to governmental as well as private parties in the civil litigation and\ndiscovery contexts. See Fed. R. Civ. P. 26; Fed. R. Evid. 501. These \xe2\x80\x9c govern\xc2\xad\nm ental\xe2\x80\x9d privileges are necessary to protect the ability of the Executive Branch to\ndischarge its duties under the Constitution and the laws of the United States, but\nbecause their assertion in litigation does not raise the problems of a constitutional\nconflict with a coequal branch, these privileges may be invoked by the head of the\nexecutive department in possession or control of the requested documents, or his\nor her delegate.35 See Association fo r Women in Science v. Califano, supra. See\nalso M cClelland v. Andrus, supra; Daniel, \xe2\x80\x9cAsserting Claims of Official Gov\xc2\xad\nernmental Privilege in Litigation\xe2\x80\x9d (Nov. 1980). These privileges also have\nprotect communications from the Office of the Attorney General to the Office of the President\xe2\x80\x94 the work-product\nprivilege The work-product privilege under exemption 5 of the FOIA protects documents prepared in con\xc2\xad\ntemplation of litigation which reflect the \xe2\x80\x9c m ental processes\xe2\x80\x9d of attorneys. The work-product pnvilege is distinct\nfrom the attomey-client pnvilege in that \xe2\x80\x9c it provides a working attorney with a \xe2\x80\x98zone of privacy\xe2\x80\x99 within which to\nthink, plan, weigh facts and evidence, candidly evaluate a client\'s case, and prepare legal theones \xe2\x80\x9d Coastal States,\nsupra, at 864. While the attomey-client privilege is designed to protect the client\xe2\x80\x99s interest in confidentiality, the\npurpose o f the work-product pnvilege is to protect \xe2\x80\x9c the adversary tnal process itself.\xe2\x80\x9d Id.\nBecause it is limited to documents prepared in contemplation o f litigation, the work-product privilege is the least\ninvoked o f the exemption 5 pnvileges in the context of President-Attomey General communications The broad\nadvisory role that the Attorney General plays vis-&-vis the President, together with the President\xe2\x80\x99s general lack of\ninvolvement in litigation strategies, makes their communications far more suited to the deliberative process and\nattomey-client privileges as a basis for nondisclosure in litigation or under FOIA.\n33 The investigatory files privilege\xe2\x80\x94which frequently encompasses information which might reveal the identity\no r statements of informants\xe2\x80\x94 protects interests which may be asserted under a claim of executive privilege also, if\nthe interests are sufficiently strong in a particular case to implicate constitutional concerns. See 40 Op. Att\xe2\x80\x99y Gen.\n45. See also Office o f Legal Counsel, \xe2\x80\x9c Executive Privilege in Litigation for Investigative Files\xe2\x80\x9d (September 18,\n1981); Harmon, \xe2\x80\x9c Memorandum to All Heads of Offices, Divisions, Bureaus, and Boards of the Department of\nJustice,\xe2\x80\x9d (May 23, 1977), Rehnquist Testimony, supra. However, because these interests rarely impinge on the\nperformance of constitutional functions of the Executive Branch to the same degree as the \xe2\x80\x9c state secrets\xe2\x80\x9d or\ndeliberative process components of the privilege, the privilege is generally asserted simply as an evidentiary\npnvilege in litigation.\n34 The privilege for confidential information on required government reports is similar to the informant\'s\nprivilege, see discussion at 3 1, infra, in that it protects information solicited by the government for its purposes on a\npromise o f confidentiality. This pnvilege, like its FOlA-exemption 6 counterpart, protects accident reports,\nem ployment history reports, financial disclosures, conflict-of-interest reports, and other information, the disclosure\no f which would constitute a \xe2\x80\x9c clearly unwarranted invasion of personal pnvacy \xe2\x80\x9d 5 U .S.C . \xc2\xa7 552(b)(6). See D ep\xe2\x80\x99t c f\nState v Washington Post C o., 456 U S. 595 (1982). D ep\xe2\x80\x99t c f the A ir Force v. Rose, 425 U.S. 352 (1976); A stfn fo r\nWomen in Science, supra. O f the pnvileges discussed in this memorandum, this is the least likely privilege to be\ninvoked in the context o f President-Attomey General communications.\n35 See generally n .5 , supra.\n\n498\n\n\x0canalogues in the Freedom of Information Act under exemptions 6 and 7, 5\nU.S.C. \xc2\xa7\xc2\xa7 552(b)(6),(7), to shield documents of the same general type from\ndisclosure to members of the public. As noted in the foregoing discussion of the\nevidentiary privileges incorporated into exemption 5 of the FOIA, the court must\nstrike a balance between \xe2\x80\x9c the public concern in revelations facilitating the just\nresolution of legal disputes [on the one hand,] and, on the other, occasional but\ncompelling needs for confidentiality,\xe2\x80\x9d M cClelland v. Andrus, supra at 1287,\nn.55, in deciding claims of privilege in the litigation context.\nA. Informant\xe2\x80\x99s Privilege\n\nThe informant\xe2\x80\x99s privilege permits the government to withhold the identity of\npersons who furnish information concerning violations of the law, or otherwise\nrender assistance, to officers charged with law enforcement responsibilities. See\n8 C. Wright & A. Miller, Federal Practice & Procedure, \xc2\xa7 2019 at 155 (1970);\nRoviaro v. United States, 353 U.S. 53 (1957); Black v. Sheraton Corp. c f\nAmerica, 47 F.R.D. 263 (D.D.C. 1969), a f f d 564 F.2d 550 (D.C. Cir. 1977).\nThe informant\xe2\x80\x99s privilege recognizes that prospective informants usually con\xc2\xad\ndition their cooperation with law enforcement officers on an assurance of ano\xc2\xad\nnymity in order to protect against physical harm or other undesirable con\xc2\xad\nsequences to themselves and their families which would very likely result as a\nconsequence of disclosure. United States v. Tucker, 380 F.2d 206, 213 (2d Cir.\n1967). Although this privilege protects only the identity of the informant,\ninformation provided by the informant may also be shielded under this privilege\nif its disclosure would reveal the informer\xe2\x80\x99s identity. Rovario v. United States,\nsupra, at 60. The informant\xe2\x80\x99s privilege, like the other privileges discussed above,\nis qualified; therefore, the government must show that its interest in effective law\nenforcement outweighs the litigant\xe2\x80\x99s need for the information. See Rovario v.\nUnited States, supra; In re Attorney General c f United States, 596 F.2d 58 (2d\nCir. 1979); 2 J. Weinstein and M. Berger, Weinstein\xe2\x80\x99s Evidence H 510[02] at\n510-18 (1982).\nB. Law Enforcement Investigatory Files Privilege\n\nLike the informant\xe2\x80\x99s privilege, the privilege for law enforcement investigatory\nfiles is necessary to protect against the harm that would flow from public\ndisclosure of information contained in the files and to facilitate the government\xe2\x80\x99s\nlaw enforcement process. See Black v. United States, 564 F.2d 531 (D.C. Cir.\n1977); Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970). Disclosure of open\ninvestigatory files36 would undercut the government\xe2\x80\x99s efforts to prosecute crimi\xc2\xad\nnals by disclosing investigative techniques, forewarning suspects under inves\xc2\xad\n36 As is apparent from the reasons underlying the pnvilege, the law enforcement investigatory files pnvilege does\nnot apply lo files pertaining to investigations which have been closed, although information protected by another\nprivilege, e.g ., the informant\xe2\x80\x99s pnvilege, would continue to be shielded. See 2 Weinstein\xe2\x80\x99s Evidence 11 509(07) at\n509-52-58 (1982). Cf. Supreme C ourt\xe2\x80\x99s recent discussion of FOIA exemption 7 in FBI v. Abramson, 456 U.S.\n615 (1982)\n\n499\n\n\x0ctigation, deterring witnesses from coming forward, and prematurely revealing\nfacts supporting the government\xe2\x80\x99s case.37 The privilege for law enforcement\ninvestigatory files is a qualified privilege, and may be overcome by a strong\nshowing of need or interest in disclosure of the information. See Black v. United\nStates, supra.\nC . FOIA Exemption 7\n\nExemption 7 of the Freedom o f Information Act incorporates these privileges\nfor law enforcement records to protect the information contained therein from\ncompulsory disclosure to members of the public. Exemption 7 exempts from the\ngeneral disclosure mandate of the FOIA those matters which are\ninvestigatory records compiled for law enforcement purposes, but\nonly to the extent that the production of such records would\n(A) interfere with enforcement proceedings, (B) deprive a per\xc2\xad\nson of a right to a fair trial or an impartial adjudication, (C) con\xc2\xad\nstitute an unwarranted invasion of personal privacy, (D) disclose\nthe identity of a confidential source and, in the case of a record\ncompiled by a criminal law enforcement authority in the course of\na criminal investigation, or by an agency conducting a lawful\nnational security intelligence investigation, confidential informa\xc2\xad\ntion furnished only by the confidential source, (E) disclose inves\xc2\xad\ntigative techniques and procedures, or (F) endanger the life or\nphysical safety of law enforcement personnel!.]\n5 U .S.C . \xc2\xa7 552(b)(7). The subparts of \xc2\xa7 552(b)(7) make clear that the interests\nprotected therein are roughly analogous to those protected by the \xe2\x80\x9c governmen\xc2\xad\ntal\xe2\x80\x9d privileges in litigation for informant\xe2\x80\x99s identity and law enforcement inves\xc2\xad\ntigatory files. See generally FBI v. Abramson, supra; NLRB v. Robbins Tire &\nRubber C o., 437 U.S. 214 (1978); Lesar v. Department cf Justice, 636 F.2d 472\n(D.C. Cir. 1980), Church cf Scientology c f Calif, v. Department c f Justice, 612\nF. 2d 417 (9th Cir. 1979).\n\nIV. Conclusion\nThe privileges available to protect the confidentiality of the Attorney General\xe2\x80\x99s\ncommunications with the Office of the President can be roughly categorized into\nthree classes, depending upon the nature of the communications for which the\nprivilege is asserted, the interests which are sought to be protected by the claim of\nprivilege, and the persons against whom the claim is made. This memorandum\nrepresents an effort by this Office to provide the Attorney General with a general\noutline of the privileges available to him to protect his confidential communica\xc2\xad\n37 See also former Attorney General Jackson s opinion at 40 Op. A tt\xe2\x80\x99yG en 45 (1941), concluding lhat premature\ndisclosure o f law enforcement investigative reports to Congress or the public could prejudice the nghts of\nprospective defendants whose investigations are the subject of the reports.\n\n500\n\n\x0ctions and working papers from compulsory disclosure when he believes that\ndisclosure would be against the interests of the Department, the President, or the\nbroader \xe2\x80\x9c public,\xe2\x80\x9d and to provide guidelines for the assertion of those privileges.\nWhile the foregoing discussion should prove helpful in providing a framework\nfor analysis of potential claims of privilege, we would caution that the ap\xc2\xad\nplicability of any privilege to a given set of circumstances will almost always\ninvolve a judgment of competing values. While the Attorney General or the client\nmust decide initially whether to assert the privilege, the task of resolving\nconflicts arising out of such competing values, in the final analysis, is one that is\nreserved to the courts.\nT\n\nheodore\n\nB. O\n\nlson\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n501\n\n\x0c'


b'January 26, 1979\n\n79-9\n\nMEMORANDUM OPINION FOR ASSISTANT\nATTORNEY GENERAL, CIVIL DIVISION\nGrand Jury\xe2\x80\x94Disclosure\xe2\x80\x94Rule 6(e), Federal Rules\nof Criminal Procedure\n\nYou have requested our opinion on the question whether grand jury\nmaterials or information derived from grand jury materials may be\ndisclosed to attorneys in the Civil Division for use in civil proceedings, ab\xc2\xad\nsent court order. As you note, this is an im portant question, since grand\njury investigations often produce information or evidence that is useful in\ncivil cases.\nRule 6(e) o f the Federal Rules o f Criminal Procedure forbids the dis\xc2\xad\nclosure o f grand jury materials1 except in certain circumstances. The rule\nrecognizes four exceptions to this general prohibition. Disclosure o f grand\njury materials may be made pursuant to court order (1) preliminary to or\nin connection with a judicial proceeding, or (2) at the request o f the de\xc2\xad\nfendant upon showing that grounds may exist for dismissal of the indict\xc2\xad\nment (see Rule 6(e)(3)(C)(i) and (ii)); and absent court order, disclosure\nmay be made (3) to Government personnel deemed necessary by an attorney\nfor the Government to assist the attorney in the performance o f his duty to\nenforce Federal criminal law, or (4) to an attorney for the Government for\nuse in the performance o f his duty (see Rule 6(e)(3)(A)(i) and (ii)).\nYour question implicates the last o f these exceptions, the exception for\ndisclosure to an attorney for the Government for use in the performance of\nhis duty. In a nutshell, the issue is whether a disclosure o f grand jury mate\xc2\xad\nrials to an attorney in the Civil Division for use in a civil case is a disclosure\nto \xe2\x80\x9c an attorney for the Government for use in the performance o f such at\xc2\xad\ntorney\xe2\x80\x99s duty\xe2\x80\x9d within the meaning o f subsection (3)(A)(i) o f Rule 6(e).\n\n1 We use the phrase \xe2\x80\x9c grand jury materials\xe2\x80\x9d as shorthand for the statutory phrase \xe2\x80\x9c matters\noccurring before the grand ju ry .\xe2\x80\x9d The Rule prohibits the disclosure o f \xe2\x80\x9c matters occurring\nbefore the grand ju ry .\xe2\x80\x9d See, United States v. Interstate Dress Carriers, Inc., 280 F. (2d) 52\n(1960).\n\n61\n\n\x0cRule 6(e) has been amended recently, but the language of subsection\n(3)(A)(i) is identical to language that was contained in the old Rule. Like\nthe new Rule, the old Rule permitted disclosures to be made to attorneys\nfor the Government for use in the perform ance o f their duties. The old\nRule was interpreted by this Office as permitting Department o f Justice at\xc2\xad\ntorneys to use grand jury materials for civil purposes absent court order,2\nand the courts so held.5\nWe know o f no reason to support that the recent amendment to the Rule\nwas intended to change this result. The relevant language was retained\nwithout modification, and the legislative history contains no suggestion of\na contrary intention. We have been referred to a recent decision in the\nFifth Circuit that confirms this conclusion. See, In re Grand Jury,\nMiscellaneous No. 979, 583 F. (2d) 128 (5th Cir., Oct. 18, 1978). In our\nopinion, Rule 6(e)(3)(A)(i) permits grand jury materials or information\nderived from them to be disclosed to attorneys in the civil division for use\nin civil proceedings without court order.\nWe would like to add a word o f caution. To some degree, the rule of\nsecrecy is designed to prom ote the efficiency o f the grand jury, but the\nRule is also designed to prevent this powerful and intrusive process from\nbeing misused. The Rule permits intradepartm ental disclosures for civil\npurposes, but we must remember that whenever grand jury materials are\ndisclosed for civil purposes, they are disclosed for purposes that could not,\nunder our law, justify the use o f the grand jury in the first instance. For\nthis reason among others, whenever their permission is required, the\ncourts are often reluctant to permit civil disclosures to be made during the\npendency o f a grand jury investigation. Plainly, the appearance and the\npossibility o f misuse are greatest if a civil case can proceed simultaneously\nwith a criminal investigation, drawing life from inform ation or evidence\ndeveloped in the grand jury room . See, e.g., Capitol Indemnity Corp. v.\nFirst Minn. Const. Co., 405 F. Supp. 929 (1975).\nWe think that the problem o f contem poraneous disclosure is substantial\neven in the context o f intradepartm ental disclosures. There is no rule o f law\nthat would require a civil disclosure within the Department to be deferred\nuntil the relevant criminal investigation had been completed; but unless\nthere is a genuine need for disclosure during the pendency o f the grand jury\ninvestigation, it might well be the better practice to forestall disclosure until\nthe grand jury is discharged. This is the course o f prudence. Most o f the\nreasons for the rule o f secrecy fall away once the grand jury is discharged,\nsee, Grand Jury, Miscellaneous No. 979, supra; and claims o f misuse are\neasier to rebut if there is no obvious risk that the path o f a grand jury in\xc2\xad\nvestigation was directed by civil concerns. That risk diminishes if the rule of\nsecrecy is not suspended until after the grand ju ry \xe2\x80\x99s work is done.\n\n1 See M em orandum dated December 21, 1961, to the Deputy A ttorney General.\n1 See. e.g., United States v. Proctor & Gamble Co., 356 U .S. 677 (1958).\n\n62\n\n\x0cWhere there is a genuine need for grand jury material before the grand\njury\xe2\x80\x99s investigation has reached its conclusion, you may wish to consider\ntaking steps to assure that there will be no foundation for making the\nclaim that the civil interests o f the Government shaped the direction o f the\ncriminal grand jury investigation. This could be done, for instance, by\nrestricting the civil attorneys in their contacts with the attorneys handling\nthe grand jury investigation and limiting the civil attorneys to performing\nthe more passive role o f simply receiving requested information.\nL arry A. H a m m o nd\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n63\n\n\x0c'