A War on Exemption Five on the Horizon?


With this year’s annual Sunshine Week events behind us, it is time to reflect on what were the major themes and trends from the open government community. Last year’s major trends were mostly evolved around the utilization of technology and specifically, the emergence of the FOIA portal. This year, the FOIA portal was still a popular item of discussion, especially with HR1211 fresh through the halls of congress. However, even with how popular HR1211 discussions were, there appeared to be a more specific discussion on something that was left out of HR1211, and that is the use of Exemption 5.

Exemption 5 of the Freedom of information Act protects, “inter-agency and intra agency memorandums or letters which would not be available by to a party other than an agency in litigation with the agency.” The courts have added the threshold requirement to “exempt those documents, and only those documents that are normally privileged in the civil discovery context.” There are three primary privileges that have been held to be incorporated into Exemption 5; the deliberate process, the attorney work-product privilege, and attorney client privilege. As one can see, the definition of exemption 5 is easily the most confusing of all exemptions, and its usage often raises the question of what is being hidden?

Many questions were raised regarding the use of exemption 5 throughout sunshine week. Organizations and advocates all appear to agree that exemption 5 is overused and supported their beliefs with increases seen in most agencies’ annual FOIA reports. These same organizations and advocates were also calling congress pass legislation to limit the use of this exemption and demanded oversight on government agencies who have been most frequently exercising this exemption. Although no concrete solution was provided or explanation given for the increased use of exemption 5, two important questions was raised regarding this exemption: Why has there been an increase in the use of exemption 5? And, what can be done to limit its use?

There is no doubt that exemption 5 is the most controversial exemption, as it leaves little explanation for its usage and often redacts some of the most significant information in regards to policy making and internal government communications. Over the next three blog post we will examine three important aspects of the exemption 5 controversy:

  1. Why has there been an increase in its usage?
  2. What affect does increased exemption 5 usage have on the idea of open government?
  3. What can be done to limit is usage?