Full opinion text
OUTLINE OP THE OPINION Page Introduction.............................. 755 I. BACKGROUND ...................... 755 A. Statutory Framework .............. 755 B. Factual and Procedural History ...... 757 II. DISCUSSION OF THE ASSERTED BASIS OF NON-DISCLOSURE ............... 759 A. Appellant’s (a)(2) Claim............. 759 B. Appellant’s (b)(2) Claim............. 763 1. Statutory Language ............ 763 2. Legislative History ............. 767 C. Appellant’s (b)(5) Claim............. 771 1. The Deliberative Process Privilege Claim ........................ 772 2. The Attorney Work Product Claim 774 3. The Prosecutorial Discretion Privilege ................... 776 D. Appellant’s (b)(7) Claim............. 779 III. CONCLUSION ....................... 780 WILKEY, Circuit Judge: This case arises under the Freedom of Information Act (the “Act”). Appellant is the United States Department of Justice; appellee is William Jordan, a law student at Georgetown University Law Center. The records at issue are two documents relating to the exercise of prosecutorial discretion by the United States Attorney for the District of Columbia and his assistants. The district court held that the Department of Justice is required to index these documents and to make them available for public inspection and copying under subsection (a)(2) of the Act. While we agree with the district court that these documents are releasable under the Act, we do not agree that they are releasable under subsection (a)(2). Rather, we conclude that these documents are disclosable under subsection (a)(3). We also find that the statutory exemptions from disclosure timely claimed by the Department of Justice in this case — Exemptions 2 and 5 — are inapplicable. Finally, we hold that Exemption 7, which appellant invoked for the first time on this appeal, was not timely raised. Accordingly, the Order and Judgment of the district court is affirmed as modified. I. BACKGROUND A. Statutory Framework Congress enacted the Freedom of Information Act for the express purpose of increasing disclosure of government records. It was designed “to pierce the veil of administrative secrecy and open agency action to the light of public scrutiny.” According to the Senate Report accompanying the original version of FOIA passed in 1966, the statute reflects “a general philosophy of full agency disclosure” and protects “the public’s right to know the operations of its government.” Congress amended the statute in 1974 to strengthen the disclosure requirement. The House Report on the amendments noted that “[t]his bill seeks to reach the goal of more efficient, prompt, and full disclosure of information.” The FOIA is codified at 5 U.S.C. § 552, and its structure is by now familiar. The first part of the statute — subsection (a)— mandates the disclosure of records by government agencies. It is divided into three parts, setting forth three methods by which agencies must make information available to the public. Paragraph (a)(1), not otherwise relevant in this case, requires that certain enumerated types of material be published in the Federal Register. Paragraph (a)(2) requires that certain other types of material be indexed and made available for public inspection and copying. The materials encompassed by paragraph (2) are automatically available for public inspection; no demand is necessary. It was into this category that the district court found that the materials in this case fell. Specifically, this paragraph provides in pertinent part: (2) Each agency, in accordance with published rules, shall make available for public inspection and copying— (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and (C) administrative staff manuals and instructions to staff that affect a member of the public. . Finally, and most comprehensively, paragraph (a)(3) requires disclosure, on demand, of all other reasonably described records not already released under paragraphs (a)(1) and (a)(2). It provides in pertinent part: (3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describe such records and (B) is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed, shall make the records promptly available to any person. Thus, these three paragraphs — (a)(1), (a)(2), and (a)(3)- — are alternative disclosure channels, and paragraph (a)(3) serves as a catchall provision, mandating disclosure of material that does not fall within the categories set forth in the preceding two paragraphs. Of course, FOIA does not command the disclosure of all government records. Congress realized that some secrecy is necessary for the government to function. Consequently, the second part of the statute— subsection (b) — enumerates nine categories of records that are exempt from the Act’s disclosure requirement. These limited exceptions, however, “do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” The nine enumerated exemptions are “exclusive” and “must be narrowly construed.” The exemptions relevant to the present case are as follows: (b) This section does not apply to matters that are— (2) related solely to the internal personnel rules and practices of an agency; * * * * * * (5) 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; * * * * * * (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel; B. Factual and Procedural History On 13 November 1975 appellee Jordan filed an FOIA request with the Deputy Attorney General, seeking access to the charging manuals, rules, and guidelines used by the Office of the United States Attorney for the District of Columbia in deciding (1) “which persons should be prosecuted for suspected violations of criminal laws in the District of Columbia, and/or the manner in which prosecutorial discretion will be exercised”, and (2) “which persons suspected of violations of criminal laws will be eligible for rehabilitation programs which divert such individuals from criminal prosecution.” The Department of Justice denied Jordan’s request on 3 February 1976, claiming that the requested documents were exempt from disclosure by subsection (b)(5) of the Act. Jordan filed this suit in the district court on 19 February 1976, seeking review of the Department’s action. In the course of discovery it was determined that there are at least 30 documents in the Office of the United States Attorney for the District of Columbia that fall within the description of materials requested by Jordan. However, only two of these documents are pertinent in this case. The first pertinent document is the “Papering and Screening Manual for the Superior Court Division” (the Manual). Most of the information contained in this 178-page Manual is administrative, concerning such matters as payment of witnesses, papering procedures, sample forms, office organization, and the like. However, there are ten paragraphs in the Manual that contain specific guidelines and criteria which Assistant United States Attorneys are expected to consider in handling certain offenses. Specifically, the guidelines contained in these ten paragraphs cover the following subjects: (1) situations in which non-prosecution is warranted for certain sex-related offenses (paragraph No. 316); (2) situations in which selective prosecution is warranted for certain narcotic and larceny offenses depending upon quantitative considerations, i. e. the amount of narcotics possessed or value of property stolen (paragraphs No. 332a and 333); (3) guidelines for the selection of appropriate charges from among available alternative charges depending upon certain factual considerations, e. g., the nature and extent of injuries and the type of weapon involved (paragraphs No. 307a, 307b, 308b, 327f); (4) recommended criteria in considering eligibility for first offender treatment (paragraph No. 360a); and (5) situations warranting certain internal prosecutorial action, e. g., the initiation of a five-day hold under D.C.Code, § 23-1322(e) or reduction of charges brought against defendants who are police informants (paragraphs No. 221 and 350). The second pertinent document is a 6-page memorandum entitled “Pre-Trial Diversion Guidelines” (the “Guidelines”). These guidelines set forth the criteria for eligibility in three separate pre-trial diversion programs. One of the three programs discussed in the guidelines is the First Offender Treatment (FOT) program, and the criteria for eligibility in this program are discussed on each of the Guideline’s six pages. On 24 March 1976 Jordan moved for partial summary judgment with respect to (1) the entire “Papering and Screening Manual”, and (2) the FOT Guidelines contained in the “Pre-Trial Diversion Guidelines”. Jordan contended that the Department of Justice was required by subsection (a)(2) of the Act to index both of these documents and make them “available for public inspection and copying” as “statements of policy . adopted by the agency” under (a)(2)(B) and as “administrative staff manuals and instructions to staff” under (a)(2)(C). On 30 April 1976 the U.S. Attorney for the District of Columbia wrote Jordan’s counsel, stating: I have determined that the entire 178-page Papering & Screening Manual may be disclosed to you for your inspection and copying, subject only to the excision of ten paragraphs in which I believe there exists, in addition to valid statutory exemptions, a present vital governmental interest not to disclose. With regard to First Offender Treatment (FOT) guidelines, Pre-Trial Diversion Programs are treated in a document containing six pages, on each of which is discussed FOT. The same exemptions are claimed as to this document as are claimed regarding the ten excised paragraphs of the Papering & Screening Manual. These claims for exemption will be dealt with in Defendant’s Cross-Motion for Partial Summary Judgment. Subsequently, the Department of Justice filed its cross-motion for partial summary judgment with respect to the 10 withheld paragraphs in the Manual and the FOT guidelines, claiming that this material was covered by subsection (b)(2), which exempts from disclosure matters “related solely to internal personnel rules and practices of an agency”, and by subsection (b)(5), which exempts from disclosure “intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” The Department also stressed what it viewed as the pernicious consequences that would result from disclosure: Public disclosure of these materials would alert members of the public to those situations, persons, and offenses for which prosecution is withheld, selectively applied, or disposed of by pre-trial diversion. Individuals could then successfully exploit these policies by committing crimes within these select categories, thereby escaping prosecution. For example, publication of a policy of non-prosecution (or prosecution at a lesser degree of seriousness) for possession of certain quantities of specific narcotic drugs would serve only to encourage dealers and users of narcotics to carry lesser quantities of the drug than those specified in our guidelines. A similar result would obtain if our internal guidelines regarding monetary tolerances (property value theft mínimums used in larceny cases to determine whether prosecution is warranted) were released since an offender could avoid full prosecution merely by stealing property valued at less than our de minimus standards. Obviously, the revelation of this kind of information would serve no legitimate public purpose and would ultimately result in the rescission of many of these guidelines and termination of our FOT program. The case was argued before District Judge Waddy on 13 January 1976. Judge Waddy ruled from the bench, and, on the following day, the district court issued a written Order and Judgment that granted appellee’s motion for summary judgment and declared that the Manual and the Guidelines were releasable under subsection (a)(2) of the Act. The Department of Justice appeals from this Order and Judgment. II. DISCUSSION OF THE ASSERTED BASES OF NON-DISCLOSURE The Department of Justice contends on this appeal that the withheld portions of the Manual and the FOT Guidelines are exempt from mandatory public disclosure under the FOIA. It relies on four specific provisions in the Act: paragraph (a)(2), and exemptions (b)(2), (b)(5), and (b)(7). We shall examine these claims seriatim. A. Appellant’s (a)(2) Claim The district court held that the Manual and Guidelines sought by appellee Jordan were releasable under paragraph (a)(2) of the Act. As we have already noted, that paragraph requires that certain enumerated materials, including “administrative staff manuals”, be indexed and made available for public inspection and copying even without a demand. The Department of Justice argues that this ruling by the district court was erroneous. Its contention is that the materials at issue in this case are not “administrative staff manuals” but rather are “law-enforcement manuals” and, as such, are not releasable under paragraph (a)(2). The Department’s position finds ample support in the legislative history. The original version of FOIA introduced into the Senate did not contain the word “administrative” before the words “staff manuals” in paragraph (a)(2); clause (C) of that paragraph referred only to “staff manuals.” The Senate Judiciary Committee inserted the term “administrative”, explaining this modification in its Report: The limitation of the staff manuals and instructions affecting the public which must be made available to the public to those which pertain to administrative matters rather than to law enforcement matters protects the traditional confidential nature of instructions to government personnel prosecuting violations of law in court, while permitting a public examination of the basis for administrative action. The House report explained this amendment in similar terms: [A]n agency may not be required to make available those portions of its staff manuals and instructions which set forth criteria or guidelines for the staff in auditing or inspection procedures, or in the selection or handling of cases, such as operational tactics, allowable tolerances, or criteria for defense, prosecution, or settlement of cases. It is evident, then, that by inserting the word “administrative” in paragraph (a)(2), Congress intended to make a distinction between “administrative” manuals, on the one hand, and “law enforcement” manuals, on the other. It is also clear that Congress intended that the former material should be subject to the indexing and public inspection and copying requirements of paragraph (a)(2) and that the latter material should not be included within the coverage of this paragraph. The line between these two categories— “administrative” matters and “law enforcement” matters — is not exactly clear, and it may be difficult to draw in some cases. However, in this case, it is clear enough. Both the Senate and House reports specifically indicate that instructions to Government personnel prosecuting cases in court are “law enforcement” matters and, hence, outside the scope of paragraph (a)(2). Manifestly, the documents here at issue — both the Manual and the Guidelines — fall within this description of non-covered material. Therefore, we conclude that the withheld portions of the Manual and the FOT Guidelines are not subject to disclosure under paragraph (a)(2). We agree with the Department of Justice that the district court erred in this respect. However, the mere fact that the material requested by appellee does not fall within the scope of paragraph (a)(2) does not mean that it is exempt from disclosure under the Act. As we have already noted, subsection (a) provides for three different methods of making information available to the public: (a)(1) requires certain matter to be published in the Federal Register; (a)(2) requires certain matter to be indexed and made available for public inspection and copying even without demand; and (a)(3) requires the release on demand of all reasonably described records that have not already been made available under (a)(1) or (a)(2). Thus, paragraph (a)(2) is but one of three alternative disclosure channels in the Act. If particular records, such as the Manual and Guidelines in this ease, do not fall within the scope of (a)(2), it does not mean that such documents are not disclosable under the Act. It means only that they are not subject to the particular indexing and public inspection and copying requirements of that paragraph; these same documents may nevertheless be covered by either (a)(1) or (a) (3). Indeed, (a)(3) is a catch-all provision, and virtually every agency record which does not fall within (a)(1) or (a)(2) is disclosable under (a)(3) unless it falls within one of the nine exemptions in subsection (b) . In the instant case we have already concluded that the Manual and Guidelines sought by appellee Jordan are not covered by (a)(2); nor do they appear to fall within the categories of materials enumerated in (a)(1). However, they clearly fall within the scope of (a)(3). There is no doubt that these documents are “agency records”; there is no doubt that appellee Jordan has requested these documents “in accordance with the rules” of the Department of Justice; there is no doubt that appellee Jordan’s request “reasonably describes” the records sought; and it is clear that these documents have not already been made available under (a)(1) or (a)(2). Under these circumstances, then, the Department of Justice must make the Manual and Guidelines “promptly available” to Jordan under paragraph (a)(3), unless these documents are exempted from disclosure by at least one of the nine specific exemptions delineated in subsection (b). The Department of Justice strongly challenges this conclusion, contending that staff manuals not disclosable under (a)(2) because they are “law enforcement manuals” are, as such, exempt from (a)(3) disclosure as well, regardless of whether any of the nine exemptions in subsection (b) applies. The Department reasons that the congressional policy evinced in (a)(2) of protecting law enforcement matters from disclosure would be frustrated if the same materials are releasable under (a)(3). It therefore asserts “that by excluding law enforcement manuals from the ambit of section (a)(2), Congress intended to exclude them from the ambit of the entire Act.” We believe that this position is untenable in view of the fundamental structure of the Act. The three paragraphs in subsection (a) of the Act are not exempting provisions. The only exemptions in the Act are to be found in subsection (b). The nine specific exemptions set forth in that subsection are exclusive. As the Act is structured, then, an agency is not justified in withholding records from public disclosure unless those records fall within the specific terms of at least one of the nine exemptions in subsection (b). This is clear from both the statute’s plain language and its legislative history. Subsection (c) of the Act, for example, provides that the FOIA does not authorize withholding of information or limit the availability of records to the public, except as specifically stated The Senate Committee report states that the purpose of subsection (c) is to make clear beyond doubt that all materials of the Government are to be made available to the public . . . unless specifically allowed to be kept secret by one of the exemptions in subsection [(b)]. Moreover, paragraph (a)(4)(B), part of the 1974 amendments to the Act, provides that reviewing courts may examine withheld records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) . . . Even more compelling, the last sentence of subsection (b) clearly states that only matters specifically exempted by that subsection may be withheld by an agency: Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. We agree with the Senate that § 552(c), together with § 552(a)(4)(B) and § 552(b), does make the matter “clear beyond doubt.” Finally, the case law confines the Act’s exemptions to those enumerated in subsection (b). As the Supreme Court noted in N. L. R. B. v. Sears, Roebuck & Company for example: As the Act is structured, virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act’s nine exemptions. . . . [T]he disclosure obligation ‘does not apply’ to those documents described in the nine enumerated exempt categories listed in § 552(b). It is thus clear that limitations in paragraph (a)(2) with respect to law enforcement manuals, do not “exempt” material from disclosure under paragraph (a)(3), since the only exemptions in the Act, as Congress has expressly declared, are in subsection (b). The nonapplicability of either (a)(1) or (a)(2) does not foreclose the possibility of disclosure under (a)(3), for otherwise (a)(3) has no purpose. Still, the Justice Department contends that Congress’ purpose in excluding law enforcement matters from (a)(2) would be completely defeated by including these same matters in (a)(3), and that in order to give effect to the limitations in (a)(2), we must read (a)(2)(C) as creating an exemption in addition to the nine in subsection (b). We recognize that this argument is not frivolous; however, we point out that it does not necessarily follow that Congress’ purpose in limiting the scope of (a)(2) will be frustrated by giving full effect to (a)(3), for we must give some effect to Congress’ purpose in defining three different modes of disclosure for different types of documents. On the one hand, it may be, as appellant suggests, that Congress’ purpose in excluding law enforcement matters from (a)(2) was to protect these matters from all forms of disclosure. In order for us to read the legislative history in this way, however, we would have to suppose that Congress made an egregious legislative error by placing what it intended to be an exemption in the wrong subsection of the Act, and we would also have to ignore the clear and repeated statements in the statute itself and in other parts of the legislative history that the Act permits withholding documents only to the extent that such documents fall within a specific exemption in subsection (b). We are reluctant to give ambiguous legislative history this much weight. As we recently stated concerning the FOIA: “Ambiguous inferences from the legislative history cannot supplant the clear mandate of the language of the statute.” On the other hand, it may be that Congress did not intend to give complete protection to the “law enforcement” materials it excluded from (a)(2). Paragraphs (a)(2) and (a)(3) provide for different methods of disclosure: (a)(2) requires the public indexing of materials and their automatic release to the public; (a)(3) requires release only upon the filing of a request reasonably describing the material sought. In placing the limitation on the accessibility of law enforcement materials in paragraph (a)(2) rather than in subsection (b), it may be that Congress intended to extend some, but not complete, protection to these materials; that is, Congress intended to protect law enforcement manuals from automatic public indexing and disclosure under (a)(2) but not from disclosure on demand under (a)(3). This may be thought a somewhat peculiar regime and one that may not be in the public’s interest, but it is not a wholly irrational one, and this reading of the legislative history of paragraph (a)(2) is at least consistent with the plain wording of the statute and other, less ambiguous, parts of the legislative history. We feel constrained to accept this interpretation in the absence of clearer guidance from the legislative branch: If Congress has made a mistake in drafting this law, Congress must repair it. In sum, then, we hold that the Manual and Guidelines sought by appellee Jordan in this case are not releasable under paragraph (a)(2) of the Act. However, these documents are releasable under paragraph (a) (3), unless they fall within at least one of the nine exemptions set forth in subsection (b) . The Department has, in fact, claimed that three of these exemptions apply to the requested documents — (b)(2), (5) and (7). We shall now proceed to treat these claims in turn. B. Appellant’s (b)(2) Claim The Department of Justice contends that the withheld portions of the Manual and the FOT Guidelines are exempted from mandatory disclosure by subsection (b)(2). We think it is clear from the statutory language and the legislative history of subsection (b)(2) that this position is without merit. 1. Statutory Language According to its terms, subsection (b)(2) exempts from disclosure matters “related solely to the internal personnel rules and practices of an agency.” There are three key words in this short description of exempted material: “solely”, “internal”, and “personnel”. “Internal”, as modifying or limiting “personal rules and practices of an agency”, would seem to refer to those rules and practices that concern relations among the employees of an agency, as distinct from rules and practices that might relate to, or have a more direct impact upon, members of the public. The rules and practices by which an agency orders its own affairs among its own personnel would seem to invite little public interest in disclosure. Conversely, rules and practices that have a definite impact on the public would seem to be a more fit subject for disclosure to the public. The former might properly be described as “internal”, the latter as “external” rules and practices. On this basis, the Manual and Guidelines sought by appellee should be more properly described as “external” rather than “internal”, although this is not the decisive division. “Personnel” is the real problem for the Government agency here seeking to avoid disclosure. It is almost impossible to look at this short, simple exemption on its face, “related solely to the internal personnel rules and practices of an agency,” and say that this description was intended to cover the Manual and Guidelines here. The word “personnel” would normally connote matters relating to pay, pensions, vacations, hours of work, lunch hours, parking, etc.— precisely the kind of trivia that was indeed described by the Senate’s comment on the coverage of this particular exemption. Just why the statute should go to the trouble to include a special subsection exempting this trivia is not certain. But this is what the plain language of the statute points to, and it is confirmed by the Senate’s comment, as will be seen below. The Manual or Guidelines of the type at issue are simply not “personnel” rules or practices. Finally, the word “solely” emphasizes the limited scope of Exemption 2, whatever the other words are deciphered to mean. It can only be concluded from the face of the statute that the Guidelines at issue here are not within the specific language of Exemption 2. In Ginsburg, Feldman & Bress v. FEA, the now vacated panel opinion of two judges came up with a novel reading of Exemption 2. It claimed that the phrases “internal personnel rules” and “practices of an agency” could be read disjunctively, with the former phrase referring to relations between the agency and its employees and with the latter phrase referring to operational conduct of the employees. On this appeal, for the first time since it has been dealing with the Freedom of Information Act, the Department of Justice has now adopted this reading of Exemption 2 and argues that the Manual and Guidelines sought by appellee are matters relating to “practices of an agency” and are therefore exempt under this provision. This interpretation cannot be sustained. It is violative of basic rules of English grammar, contrary to the legislative history of the exemption, and incompatible with the general purpose of the Act. Indeed, every court which has considered the specific language of Exemption 2 has concluded, for good and sufficient reasons, that the phrase “internal personnel” modifies both “rules” and “practices”. Grammatically, it is clear that “internal” modifies “practices”. “Internal” is an adjective which requires completion by the prepositional clause “of an agency”. Whatever is modified by “internal” must be internal to something. “Internal” is orphaned unless it relates to the clause “of an agency”. It is basic grammar that both nouns bracketed by the word “internal” and the phrase “of an agency” are modified by “internal”. Moreover, while it is conceivable that “personnel” applies only to “rules”, the preferred construction is that it modifies both nouns in the dyad “rules and practices”. If Congress intended to sever “practices” from “internal personnel rules”, it would have preserved parallel construction by inserting the article “the” before the word “practices”. We need not rely solely on the rules of grammar to determine that Congress had no intention of exempting a general category of information relating to “practices of an agency”. It is clear from the legislative history of this particular clause, with direct reference to its grammatical construction, that Congress intended the exemption to be read as a composite clause, covering only internal personnel matters. The phrasing of Exemption 2 is traceable to Congressional dissatisfaction with the exemption from disclosure under former Section 3 of the Administrative Procedures Act of “any matter relating solely to the internal management of an agency.” Agencies had relied on this broad language in refusing to disclose matters “ranging] from the important to the insignificant.” The language “internal personnel rules and practices” was first used in a bill specifically designed to narrow the “internal management” exemption in former Section 3 of the APA. S. 1666, introduced in the 88th Congress, proposed an exemption for “internal management” only in the subsection of the bill requiring certain matters to be published in the Federal Register. In the subsection requiring agency rules, orders and records to be made available for public inspection, an exemption was proposed only for information related “solely to the internal personnel rules and practices of an agency.” This distinction was highlighted in the Senate Report on S. 1666 by reference to the latter as “more tightly drawn” language. The Freedom of Information bills introduced in the 89th Congress, including S. 1160 which became the law in 1966, dropped the “internal management” exemption altogether and carried over the “more tightly drawn” language of S. 1666 as a single exemption. Thus, as the Supreme Court concluded in Department of the Air Force v. Rose “the legislative history plainly evidences the congressional conclusion that the wording of Exemption 2, ‘internal personnel rules and practices’, was to have a narrower reach than the Administrative Procedure Act’s exemption for ‘internal management’ ”. The Justice Department’s interpretation of Exemption 2 which sets apart “practices of an agency” as an independent category of exempt information would be contrary to Congress’ clear intention that this exemption be interpreted specifically and narrowly. Even more convincingly, it is clear from both the House and Senate hearings on Freedom of Information legislation in the 89th Congress that everyone concerned in both the legislative and executive branches understood that the words “internal personnel” applied to all of Exemption 2. For example, on the first day of House hearings on H.R. 5012, Congressman John E. Moss, Chairman of the Foreign Operations and Government Information Subcommittee of the House Government Operations Committee, Benny L. Kass, counsel to the subcommittee, and Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel, discussed the scope of the phrase “internal personnel rules and practices”: Mr. Kass. Mr. Schlei, what is your interpretation of exemption No. 2? What information would fall under those records relating solely to the internal personnel rules and practices of an agency? How does your agency interpret that? Mr. Schlei. Well, we were inclined to be critical of that exception because it did not seem to us actually that the personnel rules and practices of an agency, many of them, ought to be exempt. They ought to be public. How you handle various personnel problems and where somebody goes to complain if he is treated wrongly by his superior, and so on. All those things I would suppose should be public. They should be published somewhere. They should be up on a bulletin board. And there are some personnel rules and practices that ought to be exempt, and I think that — let’s see— Mr. Kass. It is No. 2. Mr. Schlei. And so that exception, it seemed to us, protected from disclosure things that did not need protection, as well as perhaps not going far enough as to some aspects of information that the Government gets about its employees. Mr. Kass. Where an individual is, let’s assume, fired from the agency — for cause we hope — would the facts and circumstances surrounding this discharge fall within the personnel practices of an agency as you read it? Mr. Schlei. I should not think so, although you are talking here about records that are related to the “practices ” of an agency, and conceivably a record, although it contained only a summary of some facts, say, might be related to the “practices, personnel practices,” of the agency, part of a file, part of a series of documents. I am just talking off the top of my head about that problem, but I would say that you could get a situation where a factual statement or document came within that exception. Mr. Kass. We are all talking, as you say, off the top of our heads. We are trying to create legislative history to determine what we intend. Mr. Moss. What this was intended to cover was instances such as the manuals of procedure that are handed to an examiner — a bank examiner, or a savings and loan examiner, or the guidelines given to an FBI agent. Mr. Schlei. Ah! Then the word “personnel” should be stricken. Because “personnel” I think connoted certainly to use the employees relations, employee management rules and practices of an agency. What you meant was material related solely to the internal rules and practices of any agency for the guidance of its employees — something like that. I do agree that there should be protection for the instructions given to FBI agents and bank examiners; people who, if they are going to operate in expectable ways, cannot do their jobs. Their instructions have to be withheld. But I think that word “personnel” does not do the job well enough, Mr. Chairman. I am sure it can be done. Mr. Moss. We will hope to seek a way of doing the job without exempting internal rules and practices. Mr. Schlei. I suppose that could cover quite a lot of ground, Mr. Chairman. Mr. Moss. Because I am afraid that we would there open the barn door to everything. Mr. Schlei. Well, it is one of those things, Mr. Chairman, that just shows how hard it is to cover the whole Government with a few words. There are a number of problems. Mr. Moss. Oh, we recognize the difficulty and the complexity, but we are perfectly willing to work at it. It is clear from this exchange that Congressman Moss, author of H.R. 5012, had intended the words “internal personnel” to apply to both “rules” and “practices”. He apparently wanted investigative manuals covered by the exemption, but he was told flatly that the word “personnel” precluded such interpretation. He acknowledged this, but stated his concern that excising “personnel” would “open the barn door” by leaving a broad exemption for all “internal rules and practices”. The Senate was also told by several witnesses (at its hearings on the FOIA) that the proposed legislation did not protect investigative manuals and that if the Senate wanted to protect this material it would either have to expand Exemption 2, Exemption 7 or some other provision of the Act. However, at no time did the Senate Committee or any individual Senator express a desire to cover investigative manuals and, accordingly, no change in the bill was made. Finally, it is clear in reading Exemption 2 in the context of the Act as a whole that Congress intended to limit the word “practices” to “internal personnel” matters. The recognized purpose of the Act is to assure the broadest possible access to governmental records. Accordingly, the disclosure requirements are to be construed broadly, the exemptions narrowly. If the Justice Department’s reading of Exemption 2 were accepted, the Act would not apply to “matters that are . . . related solely to the practices of an agency.” This would be an unlimited exemption, so broad that it would effectively swallow the rest of the Act. What is not an agency practice? What agency documents are there which do not relate to agency practices? And why would Congress have bothered to enumerate the other eight exemptions — “practices” would cover it all. In short, a survey of every intrinsic and extrinsic aid relevant to interpretation of Exemption 2 supports our reading of the provision’s specific language. The words “internal personnel” modify both the terms “rules” and “practices”, and, if anything is clear, it is that the documents at issue here do not relate “solely” to “internal” or to “personnel ” matters. Indeed, they may be said to relate primarily to external substantive matters. 2. Legislative History With respect to the legislative history of this particular exemption, the Justice Department is in an even weaker position than with respect to its argument on the face of the statute, because the Supreme Court, in Department of the Air Force et al. v. Rose, et al. and this court in Vaughn v. Rosen (Vaughn II) have construed and discussed at length the legislative history of this exemption. The perils of reliance on legislative history are nowhere better illustrated than with regard to Exemption 2, for rarely can there be found two such contradictory explanations of a statute’s meaning than in the Senate and House Reports. The Senate Report on the Freedom of Information Act stated: Exemption 2 relates only to the internal personnel rules and practices of an agency. Examples of these may be rules as to personnel’s use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like. Diametrically opposite was the House Report: 2. Matters related solely to the internal personnel rules and practices of any agency: Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclosure, but this exemption would not cover all “matters of internal management” such as employee relations and working conditions in routine administrative procedures which are withheld under the present law. Thus, the Senate Report interprets Exemption 2 as exempting only trivial “housekeeping” matters in which it can be presumed the public lacks any substantial interest. The language of the House Report, however, “carries the potential of exempting a wide swath of information under the category of ‘operating rules, guidelines and manuals of procedures.’ ” The Justice Department relies on the House Report and argues that the Manual and Guidelines are exempted from disclosure as “operating rules, guidelines, and manuals of procedure.” As a liminal matter, it must be remembered that committee reports are not the law; they are only aids in interpreting statutory language and are useful only to the extent they fairly reflect congressional intent. Sometimes committee reports are not reliable guides to legislative intent, as, for example, where they contain statements that contradict the plain meaning of the statutory language or that conflict with the expressed purpose of the statute. We first confronted the amazing discrepancy between the Senate and House Reports to the Freedom of Information Act in Vaughn v. Rosen (Vaughn II). In that case we rejected the House Report as a reliable guide in construing Exemption 2 and chose to rely instead upon the Senate Report as being a truer indication of legislative intent. Every court which has considered the difference between the reports has done the same. In Vaughn II we expressed several reasons for preferring the Senate Report. First, we noted that the Senate Report language was more consistent with the actual wording of the statute, whereas the House Report appeared in several areas to depart from and indeed contradict the statutory language of the Act. This is an important factor in determining the relative reliability of committee reports. Second, we observed that the House Report potentially exempted “a wide swath of information” but gave no guidance as to which matters are covered by the exemption and which are not, whereas the Senate Report provided a standard which agencies and courts could apply with certainty, consistency and clarity. The extent to which a committee report actually clarifies statutory language is also a relevant factor in determining its reliability, for reports are to be used to resolve ambiguities, not to create new ones. Third, we noted that the sweeping interpretation of Exemption 2 favored by the House Report was incompatible with Congress’ expressed intent to cut back on the previous exemption for “internal management.” Fourth, we observed that the language of the House Report seemed less consonant with the overall scheme and general purpose of the Act than did the Senate Report: Reinforcing this interpretation is “the clear legislative intent [of FOIA] to assure public access to all governmental records whose disclosure would not significantly harm specific governmental interests.” As a result, we have repeatedly stated that “[t]he policy of the Act requires that the disclosure requirement be construed broadly, the exemptions narrowly.” Thus, faced with a conflict in the legislative history, the recognized principal purpose of the FOIA requires us to choose that interpretation most favoring disclosure. Finally, we addressed in Vaughn II what one commentator has called the “abuse of legislative history” which was involved in adoption of the House Report. This refers to the fact that the expansive gloss placed on Exemption 2 and other sections of the Act by the House Report was the product of last minute chicanery by interested members of the House after the Senate had passed the bill and just as the full Committee in the House was about to report out the bill. The details of this episode have been placed on the public record by Benny L. Kass, who was counsel to the Foreign Operations and Government Operations Committee from 1962 to 1965, and who was later assistant counsel to the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee. Testifying in 1973 at Senate hearings on proposed amendments to the Freedom of Information Act, Mr. Kass explained “why the House report is so different from the rest of the bill”: The basic reason that the House bill is different was after the Senate passed the Freedom of Information Act and it was about to be reported out of the House Government Operations Committee, the Justice Department — Mr. Katzenbach, Mr. Wozencraft — came up and talked to Congressman Moss and said, look, we cannot support the bill. There are a number of changes that have to be made. I kind of appeared as an emissary on behalf of the former chairman of this subcommittee to Congressman Moss and I said it is our reading from the Senate that the Senate has already passed this bill twice, that there should be no amendments. We wanted to move forward with it. We have played with it long enough. So basically what was done under really almost an implied veto — I don’t think they ever specifically said they would veto it but there was an implied threat— we tried to compromise a number of the specific objections into the House report. I don’t think time permits going into these details. I have a very brief analysis which I was going to submit. I have to type it and I will submit it for the record, pointing out where the House kind of gave in to what the Justice Department wanted. Mr. Kass then pointed out eight sections in the House Report in which the Justice Department was able to get the language it wanted. Not surprisingly, the seventh area was the Report’s description of Exemption 2. Mr. Kass concluded: I don’t think it was a sellout but in any event it was really the price of getting the bill. It was my legal advice to both the chairman of this committee and the chairman, Congressman Moss, that the legislative history only interprets and does not vitiate in any way the legislation and that the legislation was strong and was there. I think this is important just for the record to point out why the House report is different. Fortunately, as Mr. Dobrovir said, there have been a number of cases all of which have said that the House report is so different that we have to look to the statute and that the House report should not in any way undermine the basic statute that was passed by Congress in 1966. This background is relevant to the weight that the House Report should be accorded as an item of legislative history. Statements in the report of a single House are not reliable guides to congressional intent where, as here, they have been inserted in an effort to change the meaning of the statutory language already adopted by the House which initiated the legislation. As Professor Davis said: The basic principle is quite elementary: The content of the law must depend upon the intent of both Houses, not of just one. In this instance, only the bill, not the House committee’s statements at variance with the bill, reflects the intent of both Houses. Indeed, no one will ever know whether the Senate Committee or the Senate would have concurred in the restrictions written into the House committee report. * * * * * * The reasons why the courts will reject the House committee’s abuse of legislative history, even though the Attorney General supports it, are overwhelming. Allowing the meaning of clear statutory words to be drastically changed by the House committee report would have many unsound consequences. Three major ones are: (1) The House that acts first would be deprived of any voice in the final meaning of the enactment, for the House that acts second could always adopt the same bill but alter its meaning through committee reports. (2) The sound system of the conference committee would be defeated, for the House that acts second, even when it knows the other House disagrees, could always make law as it chooses through the committee reports. (3) Statutes which are clear on their face would become unreliable indicia of the effective law. The position of this Court in Vaughn II has recently been vindicated by the action of the House of Representatives itself in passing the “Government in the Sunshine Act of 1976.” Professor Davis has recently suggested the relevance of the Sunshine Act to interpretation of the Freedom of Information Act: The Freedom of Information Act, Advisory Committee Act, Privacy Act, and Government in the Sunshine Act all deal with the subject matter of openness of records and of meetings. Each of the four statutes has its own function. Each provision of each statute may be interrelated to one or more provisions of the other statutes. Furthermore, the various statutes often use language that is identical with the language of another statute. The meaning of that language may depend not only on legislative history and interpretations with respect to the language of the one statute, but it may depend upon legislative history and interpretations with respect to the identical language that is used in one of the other statutes. Of course, Professor Davis is correct, for it is a well established principle that courts may look to subsequent legislation as an aid in the interpretation of prior legislation dealing with the same or similar subject matter. Indeed, Chief Justice Marshall stated the principle that, if it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute. Applying this principle, it is highly significant that the Government in the Sunshine Act, enacted in 1976, carries over verbatim most of the exemptions in the Freedom of Information Act, including the specific language of Exemption 2. Thus, 5 U.S.C. § 552b(c)(2) exempts from the Act’s open meeting requirement portions of meetings likely to “relate solely to the internal personnel rules and practices of an agency.” The House Report to the Sunshine Act gives the same narrow interpretation to this exemption as the Senate did in 1965: (2) This exemption includes meetings relating solely to an agency’s internal personnel rules and practices. It is intended to protect the privacy of staff members and to cover the handling of strictly internal matters. It does not include discussions or information dealing with agency policies governing employees’ dealings with the public, such as manuals or directives setting forth job functions or procedures. As is the case with all of the exemptions, a closing or withholding permitted by this paragraph should not be made if the public interest requires otherwise. It thus appears that by 1976 the House of Representatives had repudiated the sweeping language concerning Exemption 2 contained in its 1966 report on the Freedom of Information Act. This Court’s rejection of the House Report has recently been vindicated by the Supreme Court. Five months after our decision in Vaughn II, the Supreme Court in Department of the Air Force et al. v. Rose specifically considered the legislative history of Exemption 2, quoted at some length from our opinion in Vaughn II, and approved our reasoning therein, and likewise concluded, “[A]nd because we think the primary focus of the House Report was on exemption of disclosures that might enable the regulated to circumvent agency regulation, we, too, ‘choose to rely upon the Senate Report’ in this regard.” In concluding its discussion of Exemption 2, the Supreme Court stated: “In sum, we think that, at least where the situation is not one where disclosure may risk circumvention of agency regulation, Exemption 2 is not applicable to matters subject to such a genuine and significant public interest. . Rather, the general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the public could not reasonably be expected to have an interest.” From the words “at least where the situation is not one where disclosure may risk circumvention of agency regulation,” the Justice Department argues that the Supreme Court implied that Exemption 2 should be stretched to cover such a situation. We cannot agree; this language of the Supreme Court means no more than that the Court cautiously left open the question of what to do about any exemption “where disclosure may risk circumvention of agency regulation.” With the question left open, we have confronted the problem here, and as our analysis of the statutory language of Exemption 2 and its legislative history demonstrates, Exemption 2 was not designed to protect documents whose disclosure might risk circumvention of agency regulation, whatever would be the merits of such a provision. Exemption 2 is much more limited, as we have described. We thus hold that the documents sought by appellee are not exempt from disclosure under Exemption 2. We now turn to appellant’s claim under Exemption 5. C. Appellant’s (b)(5) Claim At the outset we note the Justice Department’s steadily diminishing reliance on Exemption 5 as a ground for withholding these documents. First, the U.S. Attorney’s Office denied access by a letter which cited Exemption 5 only as a ground for denying public access. Then, in the District Court, the Government relied on both Exemptions 5 and 2. In this court, in its Original Brief filed before the panel, the appellant Department of Justice relied on § 552(a)(2), Exemption 2, and Exemption 5, in that order, plus a section citing Exemption 7 as “relevant to the intent of Congress.” In a 27-page brief the Government devoted only the last two pages to its argument under Exemption 5. In its 15-page Reply Brief the Government devoted only one paragraph, less than a page, to its Exemption 5 argument. In its Supplemental Memorandum, prior to the argument en banc, the Government relied upon § 552(a)(2), Exemption 7, and Exemption 2, in that order. Exemption 5 was not even mentioned. We think this significant, because it appears that as the Government’s analysis of its position was sharpened and refined, it became increasingly clear that Exemption 5 simply had no applicability to this case. We agree. Exemption 5 of the Act, shields from mandatory disclosure 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[.] From the language of this exemption, it is clear that Congress has attempted to incorporate into the FOIA certain principles of civil discovery law. Specifically, Exemption 5 is designed “to exempt [from disclosure] those documents, and only those documents, normally privileged in the civil discovery context.” The test for determining whether particular documents fall within this exemption is set forth in the House Report, which states that “any internal memorandums 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.” In other words, if a particular document falls within a recognized evidentiary privilege and, hence, would not normally be discoverable by a private party in the course of civil litigation with the agency, then the document likewise falls within the scope of Exemption 5 and is not releasable under the FOIA. In its original brief on appeal the Department of Justice relied on three distinct evidentiary privileges in support of its Exemption 5 claim. First, it suggested that the information contained in the Manual and FOT Guidelines is protected from disclosure by the “executive privilege” that attaches to predecisional communications which reflect the policymakers’ deliberative processes. Second, it urged that the information is protected by the familiar attorney work-product privilege delineated in Hickman v. Taylor And, third, it asserted that these materials are “not discoverable by a party in litigation” because they set forth guidelines for the exercise of prosecutorial discretion. We conclude that each of these contentions is without merit. 1. The Deliberative Process Privilege Claim One of the traditional evidentiary privileges available to the Government in the civil discovery context is the common-sense, common-law deliberative process privilege. This privilege protects the “consultative functions” of government by maintaining the confidentiality of “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” The privilege attaches to inter- and intra-agency communications that are part of the deliberative process preceding the adoption and promulgation of an agency policy. There are essentially three policy bases for this privilege. First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that “officials should be judged by what they decided[,] not for matters they considered before making up their minds.” As the legislative history makes clear, Congress’ principal purpose in adopting Exemption 5 was to protect the confidentiality of the pre-deeisional deliberative process. The Senate Report states: Exemption No. 5 relates to “inter-agency or intra-agency memorandums or letters which would not be available by law to a private party in litigation with the agency.” It was pointed out in the comments of many of the agencies that it would be impossible to have any frank discussion of legal or policy matters in writing if all such writings were to be subjected to public scrutiny. It was argued, and with merit, that 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.” The committee is convinced of the merits of this general proposition, but it has attempted to delimit the exception as narrowly as consistent with efficient Government operation. The House Report described the exemption in similar terms: 5. Inter-agency or intra-agency memorandums or letters which would not be available by law to a private party in litigation with the agency: Agency witnesses argued that a full and frank exchange of opinions would be impossible if all internal communications were made public. They contended, and with merit, that advice from staff assistants and the exchange of ideas among agency personnel would not be completely frank if they were forced to “operate in a fishbowl.” Moreover, a Government agency cannot always operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or regulation. This clause is intended to exempt from disclosure this and other information and records wherever necessary without, at the same time, permitting indiscriminate administrative secrecy. S. 1160 exempts from disclosure material “which would not be available by law to a private party in litigation with the agency.” Thus, any internal memorandums 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. Guided by these expressions of legislative intent, the cases uniformly hold that Exemption 5 was designed to embody th