Mervin v. F. T. C., 77-1204

• Decision Date: 04 December 1978
• Docket Number: No. 77-1204,77-1204
• Citation: 591 F.2d 821,192 U.S.App.D.C. 212
• Parties: Michael N. MERVIN, Appellant, v. FEDERAL TRADE COMMISSION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 821

591 F.2d 821

192 U.S.App.D.C. 212

Michael N. MERVIN, Appellant, v. FEDERAL TRADE COMMISSION.

No. 77-1204.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 4, 1978.

Decided Nov. 2, 1978.

Rehearing Denied Dec. 4, 1978.

Michael N. Mervin, pro se.

Jonathan Lash, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease and Michael J. Ryan, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before BAZELON, McGOWAN and MacKINNON, Circuit Judges.

Opinion for the court PER CURIAM.

Opinion filed by Circuit Judge BAZELON, concurring in part and dissenting in part.

PER CURIAM:

Plaintiff-appellant Michael N. Mervin was employed by the Federal Trade Commission (FTC) as an attorney until he was discharged early in 1971. After pursuing a variety of other administrative and judicial proceedings, he brought this action in 1976 against the FTC. He presents three separate claims: (1) for disclosure of documents under the Freedom of Information Act (FOIA); (2) for amendment of the FTC's records relating to him, under the Privacy Act of 1974; and (3) for reinstatement and damages on the basis that his dismissal was wrongful. On cross-motions for summary judgment, the District Court granted summary judgment to the FTC on all three counts. We affirm.

A

Under the FOIA, 5 U.S.C. § 552, Mervin seeks disclosure of four memoranda prepared by government attorneys while the FTC was defending against an earlier suit for reinstatement brought by Mervin. That suit was dismissed for failure to exhaust administrative remedies.

The FTC submitted an affidavit by one of its attorneys, W. Randolph Smith (Brief for Appellee, App. at 42-44), generally describing the four memoranda and claiming that they are exempt from disclosure under exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5). Exemption 5 provides that government agencies need not disclose "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." The Supreme Court has said that the civil discovery rules "can only be applied under Exemption 5 by way of rough analogies." EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). Nevertheless, it is clear that exemption 5 subsumes the attorney work product privilege. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). As characterized in Fed.R.Civ.P. 26(b)(3), the attorney work product privilege protects "against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."

Mervin's position appears to be that, although parts of the memoranda may be attorney work product exempt from disclosure, he is entitled to disclosure of those portions of the memoranda which contain statements of fact concerning his dismissal. Subsection (b) of the FOIA provides in part that "(a)ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). For example, a government attorney may not protect a verbatim witness statement from disclosure (either under the FOIA or in civil discovery) merely by including its text in a memorandum prepared for use in litigation. Robbins Tire & Rubber Co. v. NLRB,563 F.2d 724, 735-37 (5th Cir. 1977), Rev'd on other grounds, 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); See Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 26, 424 F.2d 935, 939, Cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970) (governmental deliberative privilege). ¹

We agree with the District Court and with the government that it would not be appropriate to sever factual material out of the memoranda at issue here. We recently said, in Mead Data Central, Inc. v. United States Dep't of Air Force, 184 U.S.App.D.C. 350, 566 F.2d 242, 256 (1977), that:

Exemption five is intended to protect the deliberative process of government and not just deliberative material. . . . In some circumstances . . . the disclosure of even purely factual material may so expose the deliberative process within an agency that it must be deemed exempted by section 552(b)(5).

For example, in Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 274-78, 491 F.2d 63, 67-71 (1974), we held certain summaries of evidence in an administrative hearing to be non-severable. The summaries had been prepared by the government officers who had heard the evidence, to assist the agency head who was charged with making a decision based on that evidence. To disclose the factual portions of these documents, we noted, would disclose which facts the administrator's aides considered important enough to bring to his attention, thereby exposing part of the deliberative process in a way contrary to the intent of exemption 5 that government officials be able to communicate among themselves in candor concerning decisions not yet made. Accord, Brockway, supra.

Montrose Chemical and Mead Data, supra, illustrate that in cases concerning the governmental deliberative process the distinction between "factual" and "deliberative" material does not answer all exemption 5 questions. This case concerns the attorney work-product privilege. We believe that a strict demarcation between factual and deliberative material (requiring disclosure of the former) is even less helpful here than it is in cases involving the governmental deliberative process.

An important part of what is protected by the privilege for attorney work-product is the attorney's consideration and weighing of the facts. Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Kent Corp. v. NLRB, 530 F.2d 612, 624 (5th Cir.), Cert. denied, 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287 (1976) (FOIA exemption 5). Because of this, even the factual material segregated from attorney work-product is likely to reveal some of the attorney's tactical and strategic thoughts. While the government cannot exempt pure statements of fact from disclosure by calling them attorney work-product, we agree with the Fourth and Fifth Circuits that material which might disclose an attorney's appraisal of factual evidence is attorney work-product exempted from disclosure by exemption 5. Kent Corp. v. NLRB, supra; Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1137-38 (4th Cir. 1977). Cf. Robbins Tire, supra, in which the Fifth Circuit distinguished Kent Corp. and held that certain witness statements were not within exemption 5.

The dissent suggests that the case should be remanded to the District Court for either further government affidavits or an In camera inspection of the documents. We disagree. Courts should ordinarily consider the possibility of examining the documents In camera to determine whether the material claimed to be exempt as attorney work-product contains segregable factual portions. In some cases it may be the only way to insure that exemption 5 is properly applied. In camera inspection, however, will not be necessary in all cases. ² See generally Mead Data, supra, 184 U.S.App.D.C. at 358 & n.10, 368, 369-70, 566 F.2d at 250 & n.10, 260, 261-62.

Our examination of the record in this case indicates that In camera inspection is not required. Mr. Smith's sworn affidavit (Brief for Appellee, App. at 42-44) satisfies us that, to the extent the documents at issue contain factual material, it is incidental to and bound up with, discussion of litigation strategy and the deliberative processes of attorneys actively preparing their defense for a pending lawsuit. ³ Since the affidavit establishes that the "factual" material is actually privileged attorney work-product, further inquiry is not necessary. ⁴

In coming to this conclusion, we stress that this case concerns the attorney work-product privilege, not the privilege for governmental deliberation. The likelihood that factual material will be segregable is smaller in cases dealing with attorney work-product than in cases dealing with the governmental deliberative process. In the process of administrative decision making, it is likely that factual documents will be developed, for example, by lay personnel without decisionmaking or advisory authority, which can be segregated from deliberative material without difficulty, and with minimal danger that the deliberative process will thereby be excessively exposed. On the other hand, an attorney's written product in preparing for litigation, even if factually oriented, seldom can be separated from his tactical and strategic thinking. As a result, the government's assertion that an attorney's work-product is not segregable permits a court to apply a broader privilege than in those cases where the work-product privilege is not involved.

Mervin urges that factual material within the attorney work-product is exempt from disclosure only if the facts are available to the requestor from some other source. Apparently the only case to so hold is Morton-Norwich Products, Inc. v. Mathews, 415 F.Supp. 78, 82 (D.D.C.1976). It is not necessary for us to consider whether this rule should apply in FOIA cases generally. It suffices for the present case to hold, that in view of the strong public policies furthered by the privilege for attorney work-product, factual material may be protected as part of attorney work-product even though it is not reasonably available to the requestor from another source. We note that the Supreme Court in Mink described the segregable portions rule as requiring disclosure of "purely factual material appearing in those documents in a form that is severable Without compromising the private remainder of the documents." 410 U.S. at 91, 93 S.Ct. at 838 (emphasis added). See also 5 U.S.C. § 552(b) ("Reasonably segregable portion") (emphasis added); Schwartz v....