Section 1662.22 - The FOIA Exemption 5: Internal documentsThis exemption covers inter-agency or intra-agency government documents that fall within an evidentiary privilege recognized in civil discovery. Such internal government communications include an agency's communications with an outside consultant or other outside person, with a court, or with Congress, when those communications are for a purpose similar to the purpose of privileged intra-agency communications. Some of the most commonly applicable privileges are described in the following paragraphs:
(a)Deliberative process privilege. This privilege protects the decision-making processes of government agencies. Information is protected under this privilege if it is pre-decisional and deliberative. The purpose of the privilege is to prevent injury to the quality of the agency decision-making process by encouraging open and frank internal discussions, by avoiding premature disclosure of decisions not yet adopted, and by avoiding the public confusion that might result from disclosing reasons that were not in fact the ultimate grounds for an agency's decision. Purely factual material in a deliberative document is within this privilege only if it is inextricably intertwined with the deliberative portions so that it cannot reasonably be segregated, if it would reveal the nature of the deliberative portions, or if its disclosure would in some other way make possible an intrusion into the decision-making process. The privilege continues to protect pre-decisional documents even after a decision is made; however, the Chief FOIA Officer will release pre-decisional deliberative communications that were created 25 years or more before the date on which the records are requested, unless disclosure is otherwise prohibited by law.(b)Attorney work product privilege. This privilege protects records prepared by or for an attorney in anticipation of or for litigation. It includes documents prepared for purposes of administrative and court proceedings. This privilege extends to information directly prepared by an attorney, as well as materials prepared by non-attorneys working for an attorney.(c)Attorney-client communication privilege. This privilege protects confidential communications between an attorney and the attorney's client where legal advice is sought or provided.