Supreme Court and Ninth Circuit Limit Reach of Freedom of Information Act

By Marc Bruner, Perkins Coie, JD Supra, Mar. 19, 2021

The Freedom of Information Act requires that federal agencies make records available to the public upon request, unless the records fall within one of nine exemptions. “Exemption 5” covers inter-agency or intra-agency communications that would be privileged in civil litigation, including under the attorney-client, work product or deliberative process privilege. 5 U.S.C. § 552(b)(5). In two recent rulings, the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit shored up the grounds for invoking Exemption 5 and for withholding documents from public disclosure under the FOIA statute.

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