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In Through the Out Door: Circuit Panel Splits on Whether Outside Consultants Can Make Inter-Agency Memos

By E.L. Lipman

In an interesting opinion issued on Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit split on the question of whether a set of faxes and e-mails written by former government officials, who were acting as unpaid volunteers, may be considered ?intra-agency memoranda? for the purposes of the Freedom of Information Act. The Department of Defense sought to shield a set of communications ? which were solicited by senior DoD personnel and related to the agency?s plan to establish military commissions for trying enemy combatants ? from disclosure under FOIA.

A majority of the panel concluded that ?documents such as the ones here?submitted by non-agency parties in response to an agency?s request for advice?are covered by Exemption 5? of the Freedom of Information Act. Dissenting, Circuit Judge David S. Tatel urged that including non-government lawyers within the term ?intra-agency? makes it ?a purely conclusory term, just a label to be placed on any document the Government would find it valuable to keep confidential.?

The analyses of the majority and dissenting judges are accessible here.

Full post as published by Within the Scope on January 13, 2008 (boomark / email).