FOIA Exemption 5
Exemption 5 protects from disclosure “interagency or intra-agency memorandums or letters.” From a policy perspective, the withholding of such materials is thought to preserve the integrity of the deliberative process, permitting rule makers and advisers to communicate candidly. The terms “interagency” and “intra-agency” are not rigid and include any agency document that is part of the agency’s decision-making process. Courts use a “functional test” to determine whether Exemption 5 is applicable to documents generated outside of an agency.
To satisfy the Freedom of Information Act Exemption 5, the record must be non-disclosable under one of the established civil discovery privileges. The exemption notably incorporates the “the deliberative process privilege (sometimes called the executive privilege), the attorney-client privilege, and the attorney work-product privilege.” The scope of Exemption 5 is not limited to privileges specifically identified by Congress in FOIA’s legislative history. The test is whether the documents would be “routinely or normally disclosed on a showing of relevance.”
To satisfy the Freedom of Information Act Exemption 5, the record must be non-disclosable under one of the established civil discovery privileges. The exemption notably incorporates the “the deliberative process privilege (sometimes called the executive privilege), the attorney-client privilege, and the attorney work-product privilege.” The scope of Exemption 5 is not limited to privileges specifically identified by Congress in FOIA’s legislative history. The test is whether the documents would be “routinely or normally disclosed on a showing of relevance.”
Exemption 5 and Due Process
Scholar Larry R. Fleurantin has argued that the application of Exemption 5 to immigration matters violates the constitution by denying due process to aliens in removal proceedings. He emphasizes that these violations are most apparent “(1) when an alien makes a FOIA request for a copy of the file and USCIS fails to use due diligence to process the request, yet the Government almost always has a copy of the same file and uses it in the case in chief, or (2) when USCIS does provide a copy of the file but withholds the interview notes that contain binding answers that the alien gave under oath during the initial asylum interview.” Case law, however, does not implicate the due process clause in Exemption 5 actions.
Examples of Exemption 5
In Aguimate v. U.S. Department of Homeland Security, a requestor brought a FOIA action against DHS seeking the release of documents related to her asylum application that purportedly qualified as interagency memoranda. The court held that DHS applied the exemption correctly because the documents were “predecisional” in nature and, therefore, part of the deliberative process. On the other hand, in American Immigration Council v. United States Department of Homeland Security, the court found that USCIS improperly withheld documents under Exemption 5 because they were neither “predecisional” nor deliberative.