consultants and the Commission staff. These communications differ from the documents in Category A in that they are unrelated to the Final Economic Report. Documents 26 and 34 are letters about the economic theory and litigation strategy of the Exxon case from Commission staff attorneys to economic consultants retained by the Commission for advice in the case. Colbert affidavit at 7-8. The substantive portions withheld from document 26 contain an "explanation of the focus of a meeting to review certain areas of the theory of the case." Index at # 26. The withheld portions of document 34 "contain a description of the projects being worked on by various staff members and their relationship to the theory of the case." Index at # 34. They consist of "an explanation of the direction and focus of the staff's efforts in relation to specific areas of the case theory," together with the attorney-author's "opinions as to the significance of certain parts of the theory, and an outline of part of the staff's litigation strategy." Colbert affidavit at 8. The withheld portions of both documents 26 and 34 are exempt from disclosure under exemption (b)(5) as attorney "work product". See Bristol-Myers, supra, 194 U.S.App.D.C. 99, at 104 - 111, 598 F.2d 18 at 23-30; Mervin, supra, 192 U.S.App.D.C. at 217-18, 591 F.2d at 826-27; See also 716, Supra.
The names of the addressee economists have also been withheld by defendants. Colbert affidavit at 7 and 8. The economists' names could be bright guides to defendants' theory of the Exxon case, particularly if disclosed to this sophisticated plaintiff. Defendants are therefore entitled to withhold those names pursuant to the attorney "work product" privilege of exemption (b)(5). See 718, Supra; Bristol-Myers, id.; Mervin, id.
Documents 27-31, 35-40, and 42-47 are letters from an economic consultant to a staff attorney with whom the consultant was working on the Exxon case. Defendants' affidavits disclose that withheld portions of these documents contain the consultant's preliminary impressions and recommendations with respect to the Exxon case.
Colbert affidavit at 7. Accordingly, the withheld portions of these documents are exempt from disclosure under exemption (b)(5) as attorney "work product". See Bristol-Myers, id.; Mervin, id.; see also, 716, Supra.
Documents 32, 41 and 48-51 are letters to and from staff members and economic consultants. Colbert affidavit at 7. The only portion of these documents withheld are the names of the economists referred to in the letters. Defendants are entitled to withhold these names under exemption (b)(5) as part of the attorney "work product" privilege. See 718, Supra; Bristol-Myers, id.; Mervin, id.
Document 33 contains the contracts of the six economic panelists retained by the Commission for the Exxon case. The contracts are identical except for the names of the economists. Defendants have withheld only the names of the economists and a paragraph describing the focus of the economic study for the Exxon case. Colbert affidavit at 8. For reasons given above, these portions of the documents have been properly withheld pursuant to exemption (b)(5) as attorney "work product". See 718, 719, Supra.
Document 52 is an opinion letter from a Commission attorney to a former economic consultant, indicating whether, in the attorney's view, employment of the economic consultant by an oil company would constitute a conflict of interest in light of the work performed by the economist for the Exxon staff. Index at # 52; Colbert affidavit at 8. Defendants seek to withhold the paragraph containing the opinion and recommendation of the attorney pursuant to the governmental deliberative process privilege of exemption (b)(5). Colbert affidavit, Id.
The deliberative process privilege is designed to protect the "process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 150, 95 S. Ct. at 1516. The opinion of the attorney in document 52, however, is not claimed by defendants to precede any Commission decision or to be related to any process by which Commission policies are formulated. The portion of document 52 containing the opinion of the attorney may not be withheld under the deliberative process privilege because it is neither predecisional nor deliberative. See Jordan v. Department of Justice, 192 U.S.App.D.C. 144, 163-165, 591 F.2d 753, 772-74 (1978). This portion of document 52 must therefore be released to plaintiff pursuant to 5 U.S.C. § 552(a)(3) and (4)(B).
Defendants also seek to withhold the names of the economic consultant and the oil company mentioned in document 52 on the grounds that disclosure of the name of the economist would reveal one facet of the Commission's theory of the Exxon case and disclosure of the name of the oil company would allow plaintiff to discover the name of the economist. Colbert affidavit at 8-9. Document 52 is not itself privileged as attorney "work product" since, among other things, it was not prepared in anticipation of any litigation. It does, however, contain information which relates to the preparation of a case for litigation, Viz., the name of the economic consultant who had worked with the Commission staff on the Exxon case. This explicit reference is entitled to the work product privilege and is therefore exempt, pursuant to exemption (b)(5).
Furthermore, plaintiff does not dispute defendants' position that disclosure of the name of the oil company mentioned in document 52 would enable plaintiff to discover the name of the economist. By necessity, the name of the oil company may be withheld as incident to defendants' valid claim of exemption for the name of the economist.
4. Category D Documents (Index Nos. 56-64)
The documents in this category consist of internal memoranda of the Commission, its staff and general counsel. Document 60 is a staff attorney's analysis of a particular theoretical model and its potential for application to the Exxon case. Colbert affidavit at 10. Document 64 is a manual prepared by a computer company under contract with the Commission detailing proposed litigation strategy and plans for discovery in the Exxon case. Colbert affidavit at 10-11. Both documents are therefore exempt from disclosure as attorney "work product" under exemption (b)(5).
Document 59 is a memorandum from a Commission staff attorney concerning a telephone conversation between a Commission staff member and a confidential informant employed in the oil industry. Defendants have withheld the name of the informant pursuant to exemption (b)(7)(D)
and a paragraph summarizing a discussion of the Exxon case pursuant to exemption (b)(7)(A). The confidential source has received an express assurance of confidentiality. Index at # 59.
Plaintiff does not dispute that the memorandum of the conversation between the staff attorney and the informant is an "investigatory record", since the purpose for its creation "was part of an agency inquiry into specific conduct which might be found to have violated a statute or regulation administered by (the) agency." Exxon Corp. v. F.T.C., 384 F. Supp. 755 (D.D.C.1974). More particularly, plaintiff does not dispute that this record was compiled for a specific law enforcement purpose, Viz., prosecution of the Exxon case. Defendants have attested to the fact that the informant in question was given an express promise of confidentiality. Index at # 59; Pool Affidavit at 6. Moreover, because the informant was providing information about the industry in which he is employed to an agency currently bringing an enforcement action against that industry an assurance of confidentiality can reasonably be inferred. Compare Associated Dry Goods Corp. v. N.L.R.B., 455 F. Supp. 802, 813-14 (S.D.N.Y.1978) With Amway Corp. v. F.T.C., CCH 1976-1 Trade Cas. P 60798 at p. 68443 (D.D.C.1976). Accordingly, the name of the informant in document 59 has been properly withheld pursuant to exemption (b)(7)(D).
Defendants have also withheld a paragraph in document 59 outlining the Commission's theory of the Exxon case. Because this paragraph occurs in an investigatory record compiled for law enforcement purposes and because disclosure of an outline of the Commission's theory of the Exxon case would "interfere with enforcement proceedings" by providing plaintiff with earlier or greater access to Commission investigatory files than it would otherwise have, the paragraph has been properly withheld by defendants pursuant to exemption (b)(7)(A). See H.R.Rep. No. 1497, 89th Cong.2d Sess. (1966), U.S.Code Cong. & Admin.News 1966, p. 2418 reprinted in Freedom of Information Source Book, Sen. Doc. 93-82, Subcommittee on Administrative Practice and Procedure, Senate Judiciary Committee, 93d Cong., 2d Sess., at 32.
Documents 56-58 are memoranda to the Commission that are tangentially related to the Exxon case. These documents were not found within the file of complaint counsel in the Exxon case. They are described in defendants' index and in the Second and Third Supplemental Affidavits of Carol M. Thomas, Secretary of the Commission, dated January 12, 1979 (the "Second Thomas affidavit"), and May 24, 1979 (the "Third Thomas affidavit"), respectively.
Document 56 is a memorandum from two staff attorneys to the Commission concerning a petition for rulemaking by the Independent Terminal Operator's Association. Index # 56. Pursuant to a claim of deliberative process under exemption (b)(5), defendants have withheld opinions and recommendations of the staff regarding the merits of the petition, a discussion of whether to proceed by rulemaking in the petroleum industry, and drafts of proposed responses to the petition. Second Thomas affidavit at 4.
Document 56 is a predecisional, deliberative record exempt from disclosure pursuant to the deliberative process privilege of exemption (b)(5). It is predecisional because it is an intra-agency communication antecedent to the adoption of an agency decision memorialized in the Commission Blue Minute of October 31, 1977. See NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 151-52, 95 S. Ct. 1504; Jordan v. Department of Justice, supra, 192 U.S.App.D.C. 144, at 165, 591 F.2d 753, at 774. It is deliberative because it makes recommendations and expresses opinions to the Commission on legal matters concerning the petition. See Jordan v. Department of Justice, supra, 192 U.S.App.D.C. 144, at 165, 591 F.2d 753, at 774. Accordingly, document 56 is exempt from disclosure pursuant to exception (b)(5).
Document 57 is a memorandum from the General Counsel of the Commission to the Commission. Index # 57. The portions of the memorandum withheld by defendants contain opinions and recommendations of the General Counsel's Office as to whether to commence a subpoena enforcement action and an analysis of the possibility of compliance by various respondents. Index, Id. The decision of the Commission in this matter is recorded in the Blue Minute of May 24, 1977.
Document 58 is also a memorandum from the General Counsel of the Commission to the Commission. Index # 58. The portions of the memorandum withheld by defendants contain opinions and recommendations of the General Counsel's office as to an interpretation of the decision of our Court of Appeals in F.T.C. v. Atlantic Richfield Co., 185 U.S.App.D.C. 229, 567 F.2d 96 (1977), requiring temporary sequestration of certain documents from complaint counsel in the Exxon case. Index, Id.; Second Thomas affidavit at 5. The decision of the Commission on this matter is recorded in the Blue Minute of July 29, 1977.
Both documents 57 and 58 are predecisional. Both are antecedent to Commission decisions: Viz., whether to begin a subpoena enforcement action, memorialized in the Commission Blue Minute, and the effect to be given the Court of Appeals' decision in F.T.C. v. Atlantic Richfield Co. in the Exxon case, memorialized in the Commission Blue Minute of July 29, 1977.
Both documents 57 and 58 are also, in relevant part, deliberative. The withheld portions make recommendations and express opinions on legal and policy matters. See Jordan v. Dept. of Justice, Supra, 192 U.S.App.D.C. 144, at 165, 591 F.2d 753, at 774. The portions of documents 57 and 58 withheld by defendants are therefore exempt as predecisional, deliberative memoranda, pursuant to exemption (b)(5).
A. Exemption (b)(5): Attorney "Work Product" Documents
The Court has further considered defendants' motion for summary judgment in light of the explicit statutory command contained in FOIA, rejecting the "exemption by document" approach, that "any 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); See Ray v. Turner, 190 U.S.App.D.C. 290, 300, 587 F.2d 1187, 1197 (1978). FOIA requires disclosure of all reasonably segregable non-exempt material in an otherwise exempt agency record. For reasons stated below, the Court concludes that there are no reasonable segregable, non-exempt portions of any document described in defendants' index in Categories A, B, and C, and documents 60 and 64 in Category D, and determined to be exempt pursuant to exemption (b)(5) as attorney "work product".
See 717-723, Supra.
Although the attorney "work product" privilege does not extend to pure statements of fact, material which might disclose an attorney's appraisal of factual evidence is exempt from disclosure under exemption (b)(5). Mervin v. F.T.C., supra, 192 U.S.App.D.C. at 217, 591 F.2d at 826. Defendants' position with respect to non-exempt factual material contained in its work product documents is that all reasonably segregable factual material is incidental to and bound up with discussion of litigation strategy or matters directly relevant to litigation strategy of the Exxon case. Defendants maintain that no reasonably segregable portions of non-exempt, factual material remain to be disclosed. Defendants' supplemental memorandum at 7-8.
Defendants are entitled to summary judgment on this issue. Defendants have released portions of a majority of the responsive documents to plaintiff. Out of a total of 63 responsive documents relating to the Exxon case, defendants have withheld only 25 documents in full. Defendants' disclosure of portions of 60 percent of the documents responsive to plaintiff's FOIA request is a substantial indication that defendants recognize their obligation under FOIA to disclose reasonably segregable, non-exempt portions of otherwise exempt documents.
Moreover, the type of non-exempt material relevant to the application of the attorney "work product" privilege is factual material. As our Court of Appeals has recently noted:
"We believe that a strict demarcation between factual and deliberative material (requiring disclosure of the former) is even less helpful here (applied to the attorney work product privilege) than it is in the cases involving the governmental deliberative process . . . An attorney's written product in preparing for litigation, even if factually oriented, seldom can be separated from his tactical and strategic thinking."
Mervin, supra, 192 U.S.App.D.C. at 217-218, 591 F.2d at 826-27.
The result is that an agency's assertion that an attorney's "work product" is not further segregable
"permits a court to apply a broader privilege than in those cases where the work-product privilege is not involved."
All of the documents at issue here were prepared either by attorneys or at the direction of attorneys in preparation for litigation. In light of defendants' representations that these documents record or reflect discussions of litigation strategy with economists and others, and the Court's conclusion that they are attorney "work product," together with the apparent effort of defendants to disclose reasonably segregable, non-exempt portions of documents otherwise exempt, the Court declines to order In camera inspection of the remaining documents.
See Mervin id.; Bristol-Myers v. F.T.C., supra, 194 U.S.App.D.C. 99, at 110 n.23, 598 F.2d 18, at 29 n.23. On the basis of the evidence described above, the Court finds that defendants are entitled to summary judgment on the issue of segregability: to the extent that withheld portions of requested documents contain factual material, that material is
"incidental to and bound up with, discussion of litigation strategy and the deliberative (process) of attorneys actively preparing their (case) for a pending lawsuit."