Federal Trade Commission v. Grolier Inc.

462 U.S. 19, 103 S. Ct. 2209, 76 L. Ed. 2d 387, 1983 U.S. LEXIS 45, 36 Fed. R. Serv. 2d 636, 9 Media L. Rep. (BNA) 1737, 51 U.S.L.W. 4660
CourtSupreme Court of the United States
DecidedJune 6, 1983
Docket82-372
StatusPublished
Cited by384 cases

This text of 462 U.S. 19 (Federal Trade Commission v. Grolier Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Trade Commission v. Grolier Inc., 462 U.S. 19, 103 S. Ct. 2209, 76 L. Ed. 2d 387, 1983 U.S. LEXIS 45, 36 Fed. R. Serv. 2d 636, 9 Media L. Rep. (BNA) 1737, 51 U.S.L.W. 4660 (1983).

Opinions

Justice White

delivered the opinion of the Court.

The Freedom of Information Act (FOIA), 5 U. S. C. § 552, mandates that the Government make its records available to the public. Section 552(b)(5) exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency.” It is well established that this exemption was intended to encompass the attorney work-product rule. The question presented in this case is the extent, if any, to which the work-product component of Exemption 5 applies when the litigation for which the requested documents were generated has been terminated.

[21]*21In 1972, the Federal Trade Commission undertook an investigation of Americana Corp., a subsidiary of respondent Grolier Inc. The investigation was conducted in connection with a civil penalty action filed by the Department of Justice.1 In 1976, the suit against Americana was dismissed with prejudice when the Government declined to comply with a District Court discovery order. In 1978, respondent filed a request with the Commission for disclosure of documents concerning the investigation of Americana.2 The Commission initially denied the entire request, stating that it did not have any information responsive to some of the items and that the remaining portion of the request was not specific enough to permit the Commission to locate the information without searching millions of documents contained in investigatory files. The Commission refused to release the few items that were responsive to the request on the basis [22]*22that they were exempt from mandatory disclosure under § 552(b)(5).3

Pursuant to the Commission’s Rules, respondent appealed to the agency’s General Counsel. Following review of respondent’s request, and after a considerable process of give and take, the dispute finally centered on seven documents.4 Following in camera inspection, the District Court determined that all the requested documents were exempt from disclosure under § 552(b)(5), either as attorney work product, as confidential attorney-client communications, or as internal predecisional agency material. On appeal, the Court of Appeals held that four documents generated during the Americana litigation could not be withheld on the basis of the work-product rule unless the Commission could show that “litigation related to the terminated action exists or potentially exists.”5 217 U. S. App. D. C. 47, 50, 671 F. 2d 553, 556 (1982).

The Court of Appeals reasoned that the work-product rule encompassed by § 552(b)(5) was coextensive with the work-product privilege under the Federal Rules of Civil Proce[23]*23dure. A requirement that documents must be disclosed in the absence of the existence or potential existence of related litigation, in the Court of Appeals’ view, best comported with the fact that the work-product privilege is a qualified one. We granted the Commission’s petition for certiorari, 459 U. S. 986 (1982). Because we find that the Court of Appeals erred in its construction of Exemption 5, we reverse.

Section 552(b) lists nine exemptions from the mandatory disclosure requirements that “represen[t] the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses.” EPA v. Mink, 410 U. S. 73, 80 (1973). The primary purpose of one of these, Exemption 5, was to enable the Government to benefit from “frank discussion of legal or policy matters.” S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965). See H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). In keeping with the Act’s policy of “the fullest responsible disclosure,” S. Rep. No. 813, at 3, Congress intended Exemption 5 to be “as narro[w] as [is] consistent with efficient Government operation.” Id., at 9. See H. R. Rep. No. 1497, at 10.

Both the District Court and the Court of Appeals found that the documents at issue were properly classified as “work product” materials, and there is no serious argument about the correctness of this classification.6 “It is equally clear that Congress had the attorney’s work-product privilege specifically in mind when it adopted Exemption 5,” the privilege being that enjoyed in the context of discovery in civil litigation. NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 154-155 (1975); H. R. Rep. No. 1497, at 10; S. Rep. No. 813, at 2.

[24]*24In Hickman v. Taylor, 329 U. S. 495, 510 (1947), the Court recognized a qualified immunity from discovery for the “work product of the lawyer”; such material could only be discovered upon a substantial showing of “necessity or justification.” An exemption from discovery was necessary because, as the Hickman Court stated:

“Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness'and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” Id., at 511.

The attorney’s work-product immunity is a basic rule in the litigation context, but like many other rules, it is not self-defining and has been the subject of extensive litigation.

Prior to 1970, few District Courts had addressed the question whether the work-product immunity extended beyond the litigation for which the documents at issue were prepared. Those courts considering the issue reached varying results.7 By 1970, only one Court of Appeals had addressed the issue. In Republic Gear Co. v. Borg-Warner Corp., 381 F. 2d 551, 557 (CA2 1967), the Court of Appeals held that documents prepared in connection with litigation that was on [25]*25appeal were not subject to discovery in a related case. The court also noted that there was potential for further related litigation. Thus, at the time FOIA was enacted in 1966, other than the general understanding that work-product materials were subject to discovery only upon a showing of need, no consensus one way or the other had developed with respect to the temporal scope of the work-product privilege.

In 1970, the Federal Rules of Civil Procedure were amended to clarify the extent to which trial preparation materials are discoverable in federal courts. Rule 26(b)(3) provides, in pertinent part:

“[A] party may obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative . . .

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462 U.S. 19, 103 S. Ct. 2209, 76 L. Ed. 2d 387, 1983 U.S. LEXIS 45, 36 Fed. R. Serv. 2d 636, 9 Media L. Rep. (BNA) 1737, 51 U.S.L.W. 4660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-trade-commission-v-grolier-inc-scotus-1983.