## Facts

- The Federal Trade Commission (FTC) investigated a Grolier subsidiary in the early 1970s in connection with a federal civil penalty action.
- The civil penalty action was dismissed with prejudice after the Government declined to comply with a discovery order.
- After dismissal, Grolier requested documents from the FTC under the Freedom of Information Act (FOIA) related to the FTC’s investigation.
- The FTC denied disclosure, invoking FOIA Exemption 5 for inter- or intra-agency materials not available to a litigant in discovery against the agency.
- The withheld materials included attorney work product prepared in anticipation of litigation.

## Issues

1. Whether FOIA Exemption 5 permits an agency to withhold attorney work product without regard to whether related litigation is ongoing, anticipated, or terminated.
2. Whether Exemption 5 requires a showing that “related litigation exists or potentially exists” before work product may be withheld.

## Decision

- The Supreme Court reversed the D.C. Circuit.
- The Court held that, under Exemption 5, attorney work product is exempt from mandatory FOIA disclosure without regard to the status of the litigation for which it was prepared.
- The Court rejected any Exemption 5 requirement that the agency show related litigation is pending or reasonably anticipated.

## Legal Principles

- Exemption 5 incorporates the discovery baseline: whether the materials “would not be available by law” to a party in litigation with the agency.
- The Exemption 5 inquiry is categorical and asks whether the materials would be “routinely” or “normally” disclosed upon a showing of relevance in civil discovery.
- Attorney work product is not ordinarily discoverable under Rule 26(b)(3) absent a showing such as substantial need, and therefore falls within Exemption 5.
- FOIA does not require agencies to evaluate, case by case, whether a requester could overcome work-product protection in hypothetical litigation, nor whether related litigation exists.

## Conclusion

FOIA Exemption 5 protects attorney work product as a class of materials not normally available in discovery, and that protection does not expire when the litigation that prompted the work product ends.


Fed. Trade Comm’n v. Grolier, Inc., 462 U.S. 19 (1983)