Federal Trade Commission v. Grolier Incorporated

• Citation: 76 L.Ed.2d 387,103 S.Ct. 2209,462 U.S. 19
• Decision Date: 06 June 1983
• Docket Number: No. 82-372,82-372
• Parties: FEDERAL TRADE COMMISSION, et al., Petitioners v. GROLIER INCORPORATED
• Court: United States Supreme Court

462 U.S. 19

103 S.Ct. 2209

76 L.Ed.2d 387

FEDERAL TRADE COMMISSION, et al., Petitioners

v GROLIER INCORPORATED.

No. 82-372.

Argued March 29, 1983.

Decided June 6, 1983.

Syllabus

Exemption 5 of the Freedom of Information Act (FOIA) exempts from disclosure under the Act "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." Petitioner Federal Trade Commission (FTC) conducted an investigation of a subsidiary of respondent in connection with a civil penalty action against the subsidiary in Federal District Court filed by the Department of Justice. The action was later dismissed with prejudice when the Government declined to comply with a discovery order. Thereafter, respondent filed a request with the FTC for disclosure of certain documents concerning the investigation of the subsidary, but the FTC denied the request on the ground that the documents were exempt from disclosure under Exemption 5. Respondent then brought suit in Federal District Court to compel release of the documents. The District Court held that the documents were exempt from disclosure under Exemption 5 as, inter alia, attorney work-product. The Court of Appeals held that the documents generated during the action against the subsidiary could not be withheld on the basis of the work-product rule unless the FTC could show that "litigation related to the terminated action exists or potentially exists." The court reasoned that the work-product rule encompassed by Exemption 5 was coextensive with the work-product privilege under the Federal Rules of Civil Procedure, and that a requirement that documents must be disclosed in the absence of the existence or potential existence of related litigation best comported with the fact that the work-product privilege is a qualified one.

Held: Under Exemption 5, attorney work-product is exempt from mandatory disclosure without regard to the status of the litigation for which it was prepared. By its own terms, Exemption 5 requires reference to whether discovery would normally be required during litigation with the agency. Under a literal reading of Federal Rule of Civil Procedure 26(b)(3), the work-product of agency attorneys would not be subject to discovery in subsequent litigation unless there was a showing of need and thus would fall within the scope of Exemption 5. But regardless of how Rule 26(b)(3) is construed, the Court of Appeals erred in construing Exemption 5 to protect work-product material only if related litigation exists or potentially exists. The test under Exemption 5 is whether the documents would be "routinely" or "normally" disclosed upon a showing of relevance. The Court of Appeals' determination that its rule concerning related litigation best comported with the qualified nature of the work-product rule is irrelevant in the FOIA context. Whether its immunity from discovery is absolute or qualified, a protected document cannot be said to be subject to "routine" disclosure. Work-product materials are immune from discovery unless the one seeking discovery can show substantial need in connection with subsequent litigation. Such materials are thus not "routinely" or "normally" available to parties in litigation and hence are exempt under Exemption 5. This result, by establishing a discrete category of exempt information, implements the FOIA's purpose to provide "workable" rules. Pp. 23-28.

217 U.S.App.D.C. 47, 671 F.2d 553, reversed.

Kenneth S. Geller, Washington, D.C., for petitioners.

Daniel S. Mason, San Francisco, Cal., for respondent.

Justice WHITE delivered the opinion of the Court.

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, mandates that the Government make its records available to the public. Section 552(b)(5) exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." It is well established that this exemption was intended to encompass the attorney work-product rule. The question presented in this case is the extent, if any, to which the work-product component of Exemption 5 applies when the litigation for which the requested documents were generated has been terminated.

In 1972, the Federal Trade Commission undertook an investigation of the Americana Corporation, a subsidiary of respondent Grolier Incorporated. The investigation was conducted in connection with a civil penalty action filed by the Department of Justice.¹ In 1976, the suit against Americana was dismissed with prejudice when the Government declined to comply with a District Court discovery order. In 1978, respondent filed a request with the Commission for disclosure of documents concerning the investigation of Americana.² The Commission initially denied the entire request stating that it did not have any information responsive to some of the items and that the remaining portion of the request was not specific enough to permit the Commission to locate the information without searching millions of documents contained in investigatory files. The Commission refused to release the few items that were responsive to the request on the basis that they were exempt from mandatory disclosure under § 552(b)(5) of the FOIA.³

Pursuant to the Commission's Rules, respondent appealed to the agency's General Counsel. Following review of respondent's request, and after a considerable process of give and take, the dispute finally centered on seven documents.⁴ Following in camera inspection, the District Court determined that all the requested documents were exempt from disclosure under § 552(b)(5), either as attorney work-product, as confidential attorney-client communications, or as internal pre-decisional agency material. On appeal, the Court of Appeals held that four documents generated during the Americana litigation could not be withheld on the basis of the work-product rule unless the Commission could show that "litigation related to the terminated action exists or potentially exists." ⁵ 671 F.2d 553, 556 (1982).

The Court of Appeals reasoned that the work-product rule encompassed by § 552(b)(5) was coextensive with the work-product privilege under the Federal Rules of Civil Proce- dure. A requirement that documents must be disclosed in the absence of the existence or potential existence of related litigation, in the Court of Appeals' view, best comported with the fact that the work-product privilege is a qualified one. We granted the Commission's petition for certiorari, --- U.S. ----, 103 S.Ct. 339, 74 L.Ed.2d 381 (1982). Because we find that the Court of Appeals erred in its construction of Exemption 5, we reverse.

Subsection (b) of the Act lists nine exemptions from the mandatory disclosure requirements that "represent[ ] the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses." EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). The primary purpose of one of these, Exemption 5, was to enable the Government to benefit from "frank discussion of legal or policy matters." S.Rep. No. 813, 89th Cong., 1st Sess., 9 (1965). See H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966), U.S.Code Cong. & Admin.News 1966, p. 2418. In keeping with the Act's policy of "the fullest responsible disclosure," S.Rep. No. 813, p. 3, Congress intended Exemption 5 to be "as narrow[ ] as [is] consistent with efficient Government operations." Id., at 9. See H.R.Rep. No. 1497, p. 10.

Both the District Court and the Court of Appeals found that the documents at issue were properly classified as "work product" materials, and there is no serious argument about the correctness of this classification.⁶ "It is equally clear that Congress had the attorney's work-product privilege specifically in mind when it adopted Exemption 5," the privilege being that enjoyed in the context of discovery in civil litigation. NLRB v. Sears Roebuck & Co., 421 U.S. 132, 154, 154-155, 95 S.Ct. 1504, 1518, 1518, 44 L.Ed.2d 29 (1975); H.R.Rep. No. 1497, p. 10; S.Rep. No. 813, p. 2.

In Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947), the Court recognized a qualified immunity from discovery for the "work product of the lawyer;" such material could only be discovered upon a substantial showing of "necessity or justification." An exemption from discovery was necessary because, as the Hickman Court stated:

"Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." Id., at 511, 67 S.Ct., at 393.

The attorney's work-product immunity is a basic rule in the litigation context, but like many other rules, it is not self-defining and has been the subject of extensive litigation.

Prior to 1970, few District Courts had addressed the question whether the work-product immunity extended beyond the litigation for which the documents at issue were prepared. Those courts considering the issue reached varying results.⁷ By 1970, only one court of appeals had addressed the issue. In Republic Gear Co. v. Borg-Warner, 381 F.2d 551, 557 (CA2 1967), the Court of Appeals held that documents prepared in connection with litigation that was on appeal were not subject to discovery in a related case. The court also noted that there was potential for further related litigation. Thus, at the time FOIA was enacted in 1966, other than the general understanding that work-product materials were subject to discovery only upon a showing of need, no consensus one way...