Defendant maintains that the excised portions of exhibits H through O are properly exempt from disclosure pursuant to FOIA exemption (b)(5). 5 U.S.C. § 552(b)(5). This exemption protects from disclosure "inter-agency or intra-agency memorandum or letters which would not be available to a party other than an agency in litigation with the agency." It has been construed to "exempt 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). The three primary privileges which this exemption contemplates are the deliberative process privilege, the attorney work-product privilege and the attorney-client privilege. Id. at 149; See also Coastal States Gas Corporation v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 862 (D.C. Cir. 1980). Within this context, the exemption protects from disclosure "recommendations, draft documents, proposals, suggestions and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Id. at 866. In essence, this exemption was designed to protect the integrity of the agency decision-making process.
In the instant case, defendant has invoked exemption (b)(5) to withhold records falling within the deliberative process privilege. In order for a document to fall within this exemption, it must meet two fundamental requirements. First, it must be "predecisional" such that it is "antecedent to the adoption of agency policy." See Jordan v. Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 774 (D.C. Cir. 1978). Second, the document must be a "direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).
Plaintiff simply maintains that the withheld documents "must contain" additional segregable factual material not exemption pursuant to 5 U.S.C. § 552(b)(5). The Court, however, is persuaded that defendant has demonstrated that the excised portions of the documents are exempt from disclosure under (b)(5). Defendant represents, and the Court has been presented with no reason to doubt, that the withheld information includes memoranda, draft reports, recommendations, legal opinions and draft findings, all of which reflect its deliberations regarding a remedy to the turbine deficiency problem at the Dam. Disclosure of such information would undoubtedly hamper the Government's deliberative process as it would reveal the thought process of the agency prior to the adoption of a specific course of conduct. It is undisputed that no final agency decision regarding the turbine deficiency problem has been reached. Given the status of the agency's decision-making process, its decision not to disclose the predecisional documents is entitled to particular judicial deference. Chemical Manufacturers Association v. Consumer Product Safety Commission, 600 F. Supp. 114, 117-18 (D.D.C. 1984).
Finally, defendant has provided copies of the documents denominated as exhibits H through O and has thoroughly labeled the excised portions. For the reasons stated heretofore, the Court finds that the Vaughn affidavit is sufficiently detailed and that there is no need for the Court to review the exhibits in camera. Plaintiff has just not articulated any basis upon which the Court could question the representations of defendant as to the contents of the documents.
For the foregoing reasons, the Court concludes that all the documents withheld by defendant are properly exempt from disclosure to plaintiff. Hence, the motion for summary judgment in favor of defendant is granted.
An Order consistent with this Memorandum Opinion will be entered this date.
DATED: March 27, 1986
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 645 F. Supp.]
ORDER - March 27, 1986, Filed
Upon consideration of the motion of defendant for summary judgment, the opposition, the supporting and opposing memoranda, the entire record herein, and consistent with the Memorandum Opinion of even date and it appearing to the Court from the pleadings and affidavits that no genuine issue exists as to any material fact and that defendant is entitled to judgment as a matter of law, it is this 27th day of March, 1986,
ORDERED that the motion of defendant for summary judgment be, and hereby is, granted.
JUDGMENT - March 27, 1986, Filed
This case came on for hearing before the Court, Honorable Norma Holloway Johnson, District Judge, presiding, on the motion of defendant for summary judgment. The issues having been duly considered and a decision having been duly rendered by the Court in its Memorandum Opinion and Order of March 27, 1986,
It is ORDERED and ADJUDGED that the plaintiff take nothing and that this action be dismissed on the merits.
Dated at Washington, D.C., this 27th day of March, 1986.
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