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Discovery under Freedom of Information Act

The Freedom of Information Act facilitates the accessibility of every document generated by an agency to the public in one form or another, unless it falls within one of the Act’s nine exemptions[i]. All “identifiable records” must be made available to a member of the public on demand[ii]. The Act expressly states, however, that the disclosure obligation “does not apply” to those documents described in the nine enumerated exempt categories listed in 5 U.S.C.S. § 552(b).

Exemption 5 to the Freedom of Information Act withholds from a member of the public documents which a private party could not discover in litigation with the agency.  Exemption 5 exempts those documents which are normally privileged in the civil discovery context.

The very purpose of Freedom of Information Act is to inform the public about agency action and not to benefit private litigants.  The Freedom of Information Act does not increase discovery rights in agency proceedings and cannot be used to transfer the adjudication of discovery disputes from the agencies to the courts.  The ability of a private litigant to override a privilege claim set up by the Government, with respect to an otherwise disclosable document, depends to the extent of the litigant’s need in the context of the facts of his/her particular case or on the nature of the case[iii].

[i] 5 U.S.C.S. § 552

[ii] 5 U.S.C.S. § 552(a)(3)

[iii] NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975)

Inside Discovery under Freedom of Information Act