FOI Daily Dose: Reporters Committee challenges decision hiding records between Army and third-party contractor

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief earlier this month asking the U.S. Supreme Court to review an appeals court decision about Exemption 5 of the federal Freedom of Information Act, a news release said.

The case, American Management Services LLC, d/b/a Pinnacle v. Department of the Army, is a civil suit between two private real estate companies, Pinnacle and Clark, that worked on a joint project managing private family housing on two Army bases, according to the American Bar Association. Clark learned that Pinnacle engaged in fraud, and it presented a binder of evidence to the Army, so the Army granted Clark permission to sue Pinnacle.

When Pinnacle found out, it asked the Army for the binder and other communications with Clark, but the Army refused to provide them. Pinnacle filed a FOIA request for the documents and received 55 of them, but the Army refused to disclose more than 800 additional pages based on FOIA Exemptions 4 and 5.

The U.S. Court of Appeals in Richmond, Va., ruled the Army’s refusal to disclose its communications with Clark was warranted under Exemption 5 because Clark (the third-party contractor) shares a “common interest” with the government.

The Justice Department calls Exemption 5 “quite broad” and says it “protects ‘inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.’”

It also says Exemption 5 has a work-product privilege for information shared between a government agency and “a party holding common interest with the agency.”

But RCFP is questioning the court’s justification on grounds that Exemption 5 typically only shields inter- or intra-agency records and communications—not records between the government and a third-party.

In a July 3 news release announcing their decision to come alongside Pinnacle, Bruce D. Brown, executive director of RCFP, said:  “Congress was very clear in its intent to limit Exemption 5 to internal government records that could be considered privileged in litigation. Allowing the government to broadly withhold records documenting its interactions with third parties creates a dangerous vehicle for government contractors to hide information from the public. In addition to being in conflict with both legislative and judicial precedent, it would become more difficult for the press and, by extension the public, to engage in effective oversight of contractors’ operations.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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