affidavit and index its justification for withholding the documents requested. After reviewing the affidavit and index, the Court finds that plaintiffs' argument is without merit. The affidavit and index are substantially detailed. They provide the Court a clear, thorough, and specific description of the characteristics of each document, as well as a detailed reason why the Commission believes that each document, or withheld portion of each document, should be exempt. E.g., Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 861 (D.C. Cir. 1980); Mead Data Central, Inc. v. U.S. Department of Air Force, 566 F.2d at 261; Vaughn v. Rosen, 484 F.2d at 827.
The Court notes that the index provided by the Commission, standing alone, would have provided it with enough material to determine whether the claim of exemptions were justified or not. In order to be certain, however, that the Commission has provided plaintiffs and the Court with the proper justification for withholding the documents through the affidavits and index, and further to address any objection plaintiffs have concerning the thoroughness or completeness of the index or affidavit, the Court also conducted an in camera review of these documents.
This review confirmed the conclusion that these affidavits did, in fact, comply with the requirements outlined in Coastal States, Mead Data Central, and Vaughn.
Each of the documents which defendant has withheld is claimed to be exempt from disclosure under Exemption 5 of the FOIA. 5 U.S.C. § 552(b)(5). Pursuant to Exemption 5, an agency may withhold "intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Id. "From the language of this exemption, it is clear that Congress has attempted to incorporate into the FOIA certain principles of civil discovery law." Jordan v. Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 772 (D.C. Cir. 1978) (en banc). The exemption is designed "to exempt [from disclosure] those documents, and only those documents, normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975), quoted in, Jordan v. Department of Justice, 591 F.2d at 772; see also FTC v. Grolier, Inc., 462 U.S. 19, 103 S. Ct. 2209, 2213-15, 76 L. Ed. 2d 387 (1983).
Defendant asserts that all twenty-nine of the documents withheld constitute attorney work product under Exemption 5. In addition, defendant asserts that twenty-two documents, or portions thereof, are claimed to be protected by the deliberative-process privilege of Exemption 5. The Court finds that these documents are protected under the asserted privileges.
I. Attorney Work-Product Privilege
In addressing defendant's attorney work-product claim of privilege, the Court must determine whether the documents withheld are "routinely" or "normally" available to a party in litigation.
FTC v. Grolier, Inc., 103 S. Ct. at 2213-15. The Court notes that all of the documents at issue here were prepared by various staff attorneys and officials at the Commission after Gulf and Cities Service had filed their pre-merger notification reports. Once those reports were filed, an investigation was initiated by the Commission to determine whether such a merger was lawful under the relevant antitrust laws. The notes at issue were mostly those which related to meetings or telephone conversations with representatives of Gulf and/or Cities Service. Two documents are notes of private meetings among members of the Commission staff. All the documents at issue were prepared in preparation for litigation or settlement.
Under the work-product privilege of Exemption 5, only those documents prepared by an attorney or his agent in anticipation of a particular litigation or on the basis of some articulable claim which is likely to lead to litigation may be withheld. Coastal States Gas Corp. v. Department of Energy, 617 F.2d at 864-66; Jordan v. Department of Justice, 591 F.2d at 774; Kent Corp. v. N.L.R.B., 530 F.2d 612, 623 (5th Cir.), cert. denied, 429 U.S. 920, 50 L. Ed. 2d 287, 97 S. Ct. 316 (1976).
Plaintiffs have argued that because some of the documents at issue do not relate to preparation for litigation but merely involve discussions of settlement, they may not be exempt from disclosure under the work-product privilege of Exemption 5.
This argument is without merit. Certainly, any attorney's notes or working papers which relate to litigation decisions or to possible settlement discussions pertaining to foreseeable litigation are protected under the attorney work-product privilege. See Coastal States Gas Corp. v. Department of Energy, 617 F.2d at 865 (so long as "litigation was fairly foreseeable at time memorandum was prepared" exception applies); Kent Corp. v. N.L.R.B., 530 F.2d at 623 (materials qualify as work product if prospect of litigation identifiable when materials are prepared); Herbert v. Lando, 73 F.R.D. 387, 402 (S.D.N.Y. 1977), rev'd on other grounds, 441 U.S. 153, 60 L. Ed. 2d 115, 99 S. Ct. 1635 (1979) (communications may contain work product even if they are prepared in an effort to avoid possible litigation). In his concurring opinion in Grolier, Justice Brennan noted that:
It would be of substantial benefit to an opposing party (and of corresponding detriment to an agency) if the party could obtain work product generated by the agency. . . . He would get the benefit of the agency's legal and factual research and reasoning, enabling him to litigate "on wits borrowed from the adversary." . . . Worse yet, he could gain insight into the agency's general strategic and tactical approach to deciding when suits are brought, how they are conducted, and on what terms they may be settled. . . . Any litigants who face litigation of a commonly recurring type . . . have an acute interest in keeping private the manner in which they conduct and settle recurring legal disputes.
FTC v. Grolier, Inc., 103 S. Ct. at 2216 (Brennan, J., concurring) (citations omitted).
The documents in this case were all prepared "'with an eye towards litigation' even though they were prepared by a desire to avoid . . . a possible suit." Herbert v. Lando, 73 F.R.D. at 402 (quoting Vilastor-Kent Theatre Corp. v. Brandt, 19 F.R.D. 522 (S.D.N.Y. 1956)). From the time plaintiffs filed their pre-merger notification through the time Gulf withdrew that notice, the Commission was poised for the possibility of litigation. The mere fact that some of the notes of discussions relate to possible settlement does not affect the work-product privilege.
Plaintiffs have also argued that many of the notes at issue in this matter actually were not prepared by individuals who were involved with or had responsibility in the Gulf-Cities Service injunction action or settlement. Because they were not so involved, plaintiffs argue, those materials cannot be considered the attorney work product of the injunction action. This claim is factually without support. Each document at issue was prepared in anticipation of litigation. Most of the documents are notes or working papers of either Thomas J. Campbell, Director of the Commission's Bureau of Competition, or Edward M. Shumsky, Mr. Campbell's personal assistant and advisor.
As Bureau Director, Mr. Campbell "is the official ultimately responsible for enforcing Federal antitrust and trade regulation laws, [and] for investigating alleged law violations, and recommending to the Commission such further action as may be appropriate . . . includ[ing] [necessary legal action]." Declaration of David C. Shonka and Index to Documents, para. 18 ("FTC Affidavit") (quoting 16 C.F.R. § 0.16). Mr. Campbell was also actively involved in the Gulf-Cities Service injunction action. See Defendant's Response to Plaintiffs' Statement of Objections to Federal Trade Commission's Supplemental Index at Exhibits J, K. As Mr. Campbell's assistant, Mr. Shumsky's papers would also be subject to the same level of protection as those of Mr. Campbell. The papers produced by both individuals were written either in preparation for litigation or while settlement negotiations were ongoing.
Many of the remaining disputed documents were produced by attorneys who worked directly on the preliminary injunction.
These individuals were actively involved with the Gulf-Cities Service injunction action and, therefore, the documents at issue were prepared in anticipation of litigation.
The three remaining documents at issue are the notes and working papers of three of the commissioners' attorney-advisors.
These notes were all created within twenty-four hours of the time the commissioners met and voted in favor of filing an action to enjoin Gulf and Cities Service from consummating their proposed merger. In defendant's declaration and index, Mr. David C. Shonka states that:
these attorney advisors were responsible for making recommendations to the commissioners regarding litigation decisions and in fact the commissioners and their attorney advisors commonly work closely with the litigation staff in defining the issues to be raised in court litigation to which the Commission is a party.