format, it is possible that the Service would be able to argue that the same information in other formats which include exempt information, would be exempt. The basis for this argument would be that the information is already available to the public in another form.

CHIEF COUNSEL BRIEF DIGESTS

There is no exemption applicable to Chief Counsel Brief Digests. A good argument exists that Brief Digests are not "records" within the contemplation of section 552. However, since there would appear to be no harm in making Brief Digests available under section 552(a)(3), it is considered inadvisable to advance this argument in respect of Brief Digests at this time. Accordingly, a proper request for Brief Digests should be honored. If compliance with such requests becomes burdensome, the Service may then wish to argue that Brief Digests are not "records."

The argument that Brief Digests may not be "records" for purposes of section 552 stems from the definition of "record" suggested by the Attorney General and appearing at pp. 52-53 of his Memorandum. Library material made solely for reference purposes is not a "record" within this definition.

Brief Digests are nothing more than summaries of information which have already been made public, that is, summaries of Government briefs filed with the Tax Court. A Digest is never prepared until after the related briefs have been filed with the Tax Court at which time the brief is, of course, a public document. These factors tend to impart an aspect of "library material" to Brief Digests.

With a qualification noted below, the Tax Court Division Manual is exempt from disclosure under section 552 (b) (2).

The Manual contains both general and specialized instructions for processing and handling Tax Court and Court of Appeals cases, together with other procedural matters which are a part of the Tax Court function. It specifically deals with coordination of Tax Court cases having aspects related to other functions of the Chief Counsel's office and to matters pending with the Department of Justice. Also, provision is made for Regional Counsel to establish supplemental procedures and controls within the framework of the Manual instructions. The Manual is a source book for both the experienced and inexperienced attorney on current procedures and policies. For the inexperienced attorney it also serves as a training book in Tax Court matters.

As noted in its table of contents, the Manual relates to such matters as delegations of authority, non-docketed cases, actions and procedures of the Tax Court, coordination of related cases and technical matters, motions and answers, trial preparation, subpoenas and witnesses, stipulations of fact, settlement or defense, court sessions, deficiencies and overpayments, settlement stipulations, Rule 50 computations, briefs, actions on decisions, matters relating to Courts of Appeals, and general procedures for attorneys and secretaries.

Under section 552(b) (2), protection is afforded to matters that are "related solely to the internal personnel rules and practices of an agency." The House report explains that this exemption protects from public disclosure such matters as "operating rules, guidelines, and manuals of procedure for Government investigators or examiners." In line with this interpretation, Congressman Gallagher explained on the House floor that section 552(b) (2) is intended to protect from disclosure such documents as income tax auditor's manuals (112 Cong. Record 13026, June 20, 1966). The House report cautions, however, that the exemption would not cover all matters of internal management, such as employee relations, working conditions and routine administrative procedures. (H. Rept., p. 10)

The Attorney General (pp. 71-72) emphasizes that the section 552(b) (2) exemption is designed to permit the withholding of agency records relating to management operations in cases where disclosure would result in substantial prejudice to the effective performance of significant agency functions. The memorandum points out, however, that the exemption is not to be invoked to authorize any denial of information relating to management operations when there is no such need for withholding.

As indicated by the Attorney General, all agencies should reexamine those manuals which have been used only internally to ascertain whether they include

standards and instructions which necessarily cannot be disclosed to the public. He further indicates that after any confidential standards and instructions are deleted, documents containing "essential information" of the kind sought to be made available to the public by section 552(a) (2) (C) should be included in the public index and made available for public inspection and copying or published and offered for sale, unless they come within one of the exemptions of section 552(b). (Attorney General, p. 37)

Although the Tax Court Division Manual clearly contains operating rules and guidelines, relative to the disposition of cases, which fall within the exemption of section 552 (b) (2), it is recognized that in addition to such exempt material, the Manual may also contain two types of non-exempt material. The first type is that encompassed by the previously referenced section 552 (a) (2) (C). The second type of non-exempt information would include those matters of internal management which are in the nature of "routine administrative procedures" (e.g., types of correspondence and the handling thereof, jacket numbers and correspondence symbols.) This type of material is probably of little value to the public. However, the Act provides no exemption for such material so it must be made available, but only upon specific request under section 552(a)(3), and only if it can be properly identified.

It is assumed that those portions of the Manual to which the public may be entitled are contained in other documents readily accessible to the public. Therefore, there would be no reason to make that information available directly from the Manual.

Even though it is conceivable that the exempt material in the Manual could be "masked" and the remainder made available, this is not feasible where the material is so intermingled as to virtually contraindicate "masking." A similar situation arose in conjunction with the classification of one part of the Internal Revenue Manual, that is, after "masking" the exempt material, the remainder was so disconnected as to prompt the decision not to make that part available in the reading rooms. It would seem that the same decision may be applicable to the Tax Court Division Manual. The Manual should be screened, of course, to see whether this is true.

DETAILED DISCUSSION RELATING TO EXEMPTION 552 (b) (5)

Congress, by exemption (b) (5) has provided that "inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency" are exempt from disclosure. The Senate report (p. 9) reflects both a desire to protect "frank discussion of legal or policy matters" submitted in writing, and a fear that the "efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to 'operate in a fishbowl'." In addition, the Senate report (p. 2) indicated that the protection afforded by this exemption "would include the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties." The House report (p. 10) expressed similar concern, but recognized that "any internal memorandum which would routinely be disclosed to a private party through the discovery process in litigation with the agency would be available to the general public," unless some other exemption bars disclosure. (See also Attorney General's Memorandum on the Public Information Section of the A.P.A., June 1967, 38)

The problem sought to be met by exemption (b) (5) was principally that of prejudicing the usefulness of staff documents by inhibiting internal communications, and the problem of premature disclosure. It is clear that internal communications which would not routinely be available to a party in litigation with the Service, such as most drafts and memorandums between officials or agencies, remain exempt so that the free exchange of ideas will not be inhibited. (Attorney General, pp. 77-78) Were it not for exemption (b) (5), an inter-agency or intraagency memorandum or letter would be available to the public unless it happened to be protected by one of the other exemptions in section 552 (b), or a claim of executive privilege was asserted with respect to it.

In recognition that experience under the discovery provisions of the Federal Rules of Civil Procedure had given rise to a body of law in which the competing needs for privacy and disclosure had been carefully weighed by the courts, Congress, in essence, tailored exemption (b) (5) to the discovery rules. The Government as a litigant is, of course, subject to the rules of discovery. United States v.

Procter and Gamble, 356 U.S. 677, 681 (1958); Republic of China v. National Union Fire Insurance Co., 142 F. Supp. 551, 556 (D. Md. 1956).

Those provisions of the Federal Rules of Civil Procedure, as amended to July 1, 1966, under which disclosure of inter-agency or intra-agency memorandums might be effected are Rules 26(b), 34 and 45(a), (b), and (d). These rules relate to depositions, discovery and production, and subpoenas, respectively. For purposes of this memorandum only Rule 34 need be discussed.

It is clear that Rule 34 must be liberally construed (Tiedman v. American Pigment Corporation, 253 F.2d 803, 808 (4 Cir. 1958)), and that persons seeking to require production of documentary material from the Service under this rule must overcome two major hurdles. First, "good cause" must be shown, and secondly, the data in question must not be "privileged". As to this latter criteria, "the term 'not prvileged', as used in Rule 34, refers to 'privileges' as that term is understood in the law of evidence." United States v. Reynolds, 345 U.S. 1, 6 (1953).

Within the law of evidence there has developed a privilege for documents integral to an appropriate exercise of the executive's decisional and policy-making functions. Such documents reflect, inter alia, advisory opinions, recommendations, and deliberations comprising parts of a process by which governmental decisions and policies are formulated. In striking the balance in favor of non-disclosure of intra-governmental advisory and deliberative communications, the privilege subserves a preponderating policy of frank expression and discussion among those upon whom rests the responsibility for making the determinations that enable government to operate. Investigation is thereby foreclosed into the methods by which a decision is reached, the matter considered, contributive influences, or the role played by the work of others. Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, (D.C D.C. 1966) aff'd - F.2d - (D.C. Cir. May 8, 1967). In essence, injury to the consultative functions of government is the underlying consideration Kaiser Aluminum and Chemical Corp. v. United States, 157 F. Supp. 939, 946–947 (Ct. Cl. 1958). Numerous other cases support this privilege. As noted above the Senate report interprets the (b) (5) exemption as including the working papers of an agency attorney and documents which would come within the attorney-client privilege as applied to private parties. (S. Rept., p. 2) Thus, there appears to be congressional recognition of the "attorney-workproduct" privilege through exemption (b) (5).

Attorney's work product has been defined as the "impressions, observations and opinions which he has recorded and transferred to his file." Scourtes v. Fred W. Albrecht Grocery Co., 15 F.R.D. 55 (N.D. Ohio 1953). This work product of a Mawyer is protected, not because of strict privilege, but because to hold otherwise would interfere seriously with the vital function performed by counsel. Manning v. State Farm Mutual Automobile Insurance Co., 235 F. Supp. 615 (D.C. N.C. 1964). Any problem concerning the discovery of attorney's work product must inevitably start with the case of Hickman v. Taylor, 329 U.S. 495 (1947). In that case the plaintiff sought to obtain copies of statements obtained from witnesses by an attorney representing the defendant. The Supreme Court, in sustaining objections to the interrogatories stated as follows (pp. 510, 512):

"Here is simply an attempt without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquires into the files and mental impressions of an attorney. . . . The general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production . . ."

As a general rule, it may be said that the work product of an attorney is not normally a proper subject of discovery. Ayers v. Pastime Amusement Co., 240 F. Supp. 811 (D.C. S.C. 1965); Johnson v. Chicago, Rock Island and Pacific Ry. Co., 228 F. Supp. 160. (D.C Minn. 1964); Radiant Burners, Inc v. American Gas Ass'n., 207 F. Supp. 771 and 209 F. Supp. 321 (D.C Ill. 1962); Smigel v. Compagnie De Transp. Oceaniques, 183 F. Supp. 518 (D.C. Pa. 1960). However, even if the courts find that work-product material is involved, they may allow discovery upon a showing of sufficient cause or good cause. Redfern v. American President Lines, Ltd., 228 F. Supp. 227 (D.C. Calif. 1963); Diamond v. Mohawk

Rubber Co., 33 F.R.D. 264 (Colo. 1963); Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 211 F. Supp. 736 (D.C. Ill. 1962).

As previously indicated, the attorney-client privilege is still another aspect of the section 552 (b) (5) exemption. However, an assertion of good cause will not generally overcome a bona fide claim of the attorney-client privilege as to data encompassed within an inter-agency or intra-agency memorandum or letter. United States v. Aluminum Company of America, 193 F. Supp. 251, 252-254 (N.D. N.Y. 1960); Ellis-Foster Company v. Union Carbide and Carbon Corp. 159 F. Supp. 917, 919 (D. N.J. 1958). Compare, United States v. San Antonio Portland Cement Company, 33 F.R.D. 513, 515 (W.D. Texas 1963). In contrast to the conditional aspects of exemption (b) (5), most courts treat the attorneyclient privilege as absolute. Timken Roller Bearing Company v. United States, 38 F.R.D. 57, 63-64 (N.D. Ohio 1964); United States v. Gates, 35 F.R.D. 524 (Colo. 1964).

As a corollary to the above reference to the attorney-client privilege, it would seem that not only may a Government agency claim the attorney-client privilege for appropriate confidential communications passing between the agency, as client, and the Department of Justice as its attorney, but the privilege may likewise be asserted in some cases in regard to communications between administrative personnel and legal counsel of an agency. United States v. Anderson, 34 F.R.D. 518, 522-524 (D. Col. 1963). This latter proposition finds some support in those cases recognizing the existence of the attorney-client privilege between corporate management and house counsel; provided that the requisite confidentiality is maintained. Radiant Burners, Inc. v. American Gas Association, 320 F.2d 314, 322–324 (7 Cir. 1963), cert. den. 375 U.S. 929. See also exemption (b) (4) for additional protection for data customarily within the attorney-client privilege. With respect to criminal proceedings, past case law has made it clear that a litigant may not make use of the liberal discovery procedures applicable to civil suits as a dodge to avoid restrictions placed on criminal discovery and to thereby obtain documents that he would not otherwise be entitled to use relative to the criminal action. Campbell v. Eastland, 307 F. 2d 478, 487 (5 Cir. 1962), cert. den. 371 U.S. 955. See also Capitol Vending Co. v. Baker, 35 F.R.D. 510 (D.C. D.C. 1964). In this vein, a person may not resort to the Freedom of Information Act to circumvent the discovery provisions of the Federal Rules of Criminal Procedure. The Act is not intended to give a private party indirectly any earlier or greater access to investigatory files than the party would have directly in such litigation or proceedings. (H. Rept., p. 11)

At this point, it is recognized that there are differences between sections 552(b)(5) and 552(b)(7). This latter section exempts from disclosure "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." The phrase "law enforcement purposes," as indicated by the legislative history of the Act (H. Rept., p. 11), has both criminal and non-criminal aspects. Accordingly, pursuant to section 552 (b) (7), an inter-agency or intra-agency memorandum, which would be exempt under section 552(b) (5), is, nevertheless, producible if considered part of a law enforcement investigatory file which must be made "available by law to a private party." For example, in a criminal proceeding, disclosure of an inter-agency or intra-agency memorandum in possession of the Government would be required under the Jencks statute (18 U.S.C. 3500) if a government witness, as preparer of the memorandum, were to testify as to matters contained therein. It is clear that the Jencks statute is applicable to statements prepared by a government agent who becomes a witness at a trial. United States v. Berry, 277 F. 2d 826, 830 (7 Cir. 1960); Holmes v. United States, 271 F. 2d 635, 638 (4 Cir. 1959).

Thus, it can be seen that Congress by exemption (b) (5) has, in effect, provided that those inter-agency or intra-agency memorandums or letters which are not routinely subject to production under the discovery provisions of the Federal Rules of Civil Procedure do not have to be made available to the public under the Freedom of Information Act. Conversely, to the extent discovery is allowed, and the record is not protected by another exemption, disclosure is required. In summary of the above remarks:

1. Although the exemption contained in section 552(b) (5) is phrased in terms of inter-agency or intra-agency memorandums or letters, it may also include reports, studies, or similar documents.

2. If the inter-agency or intra-agency document requested contains material reflecting advisory opinions, recommendations, and deliberations comprising

part of a process by which governmental decisions and policies are formulated disclosure is contrary to the public interest and need not be made.

3. The exemption for inter-agency or intra-agency memorandums protects documents containing either mixed factual and opinion material or purely factual material, where such documents are intgral to an appropriate exercise of the executive's decisional and policy-making functions. This exemption forecloses investigation into the methods by which a governmental decision is reached, the matters considered, the contributing influences, or the role played by the work of others. It should be recognized, however, that there may be some amount of factual material which would be routinely disclosed through the discovery process. Accordingly, any internal memorandum which would be so routinely disclosed in intended by this exemption to be made available to the general public.

ADDENDUM

At the time the transmittal and classification memorandums were prepared, the final version of the Attorney General's Memorandum had not yet been - received. In order to avoid delay while awaiting receipt of the final version, reference was made to the most current version of the Attorney General's Memorandum available, viz., the preliminary draft dated May 15, 1967. The final version of the Attorney General's Memorandum, dated June 1967, has now been received. For convenience, there is set forth below the pages of the final version - which correspond to those pages of the preliminary draft which have been cited in the transmittal and classification memorandums.

Chairman, Subcommittee on Administrative Practice and Procedure, Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR CHAIRMAN KENNEDY: Enclosed is our response to the questions regarding the disclosure policies and practices of the Internal Revenue Service, which you submitted in your letter of September 20, 1974.