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The Relationship between the Common Interest Doctrine and FOIA and State Public Record Statutes

By Paula Cotter, NAAG Energy and Environment Counsel and Stephen Nevius, 2012 NAAG Bill Brown Scholarship recipient*

Paula Cotter, Environment Project Director and Chief Counsel

Last month’s NAAGazette article on the common interest doctrine reviewed the rationale and history of the doctrine [see http://www.naag.org/the-common-interest-doctrines-development-and-expansion.php]. This month’s article covers the relationship between the common interest privilege and public records acts, including the Freedom of Information Act (FOIA). The interplay between the privilege and a public records act illustrates the ever-shifting balance between a desire for transparency in government and a desire to encourage candid communication among governmental officials. The essence of a public records statute is to require disclosure of materials developed in the course of governing, except under exceptions or exemptions outlined in such statutes. Identifying specific materials as public records determines not only whether the general public could have access to the governmental materials, but also whether a party litigating against the government could find out information that would otherwise be inaccessible. The potential conflict between the doctrine of common interest and public records statutes arises, of course, where governmental actors and their counsel want to hold back information about communications among governmental parties with a common legal interest, but opposing parties, the press, or members of the general public want that information.

Courts in some jurisdictions have explicitly recognized the common interest privilege as a valid reason to exempt materials from a public records statute. At the federal level, FOIA[1] was designed to give the public more access to information from federal government agencies. FOIA mandates disclosure of records held by federal agencies unless the records fall within one of its nine listed exemptions.

The FOIA exemption that draws in the common interest rule is Exemption 5,[2] which 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.” The U.S. Supreme Court has interpreted “this somewhat Delphic provision as incorporating the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context.”[3] Therefore, if material is protected by the common interest privilege – and is therefore unavailable through discovery – the material is also protected from the normal requirements for disclosure under FOIA.

While the U.S. Supreme Court has never addressed the application of the common interest doctrine in the context of FOIA, a few federal cases have explicitly held that FOIA’s Exemption 5 encompasses material protected under the common interest doctrine. In Hunton & Williams v. U.S. Department of Justice, the U.S. Department of Justice (DOJ) wished to withhold information when confronted with a FOIA request.[4] DOJ asserted a common interest with Research In Motion (RIM), the company that makes Blackberry cell phones, and sought to have communications with the company exempted from the FOIA request.[5] The communications in question dealt with litigation that RIM was facing, which could have affected the federal government’s use of Blackberrys.[6] The Fourth Circuit specifically used the common interest rule to exempt information from disclosure. The Court held that while any common interest assertions by government agencies must be closely scrutinized, the communications at issue were exempt under Exemption 5. [7] The communications were exempt because the court viewed them as “inter-agency” since the DOJ and RIM had a common legal interest.[8] The court limited the finding of exemption to communications that occurred after the two parties had entered into a written common interest agreement.[9]

State Public Record Statutes

FOIA only applies to cases in which information is being sought from the federal government. All 50 states have enacted public record statutes to allow access to state and local government information. Fifteen states have included “catch-all” exemptions within their statutes. For instance, New Mexico’s statute states that “Every person has a right to inspect public records of this state except: … as otherwise provided by law.”[10] The New Mexico Supreme Court, while interpreting this language very broadly, has nevertheless acknowledged limits to it.[11] Thus, in New Mexico, the possibility of exemption for material developed in pursuit of a common legal interest hinges on whether that privilege has been in New Mexico – which it has, at least in one case.[12]

Some states have created statutory exemptions that are nearly identical to FOIA’s Exemption 5. Moreover, some state case law speaks to the persuasive nature of reasoning in analogous federal cases. The courts in some states seem to favor adopting the federal interpretive approach where the federal statute is the state statute’s model. One Maryland case may be of interest to attorneys general.[13] In that case, the Court of Special Appeals of Maryland explicitly followed the federal model in ruling that the common interest doctrine allowed the state to hold back inter-agency material, which was in fact a record of communication between the Maryland Attorney General’s Office and other states. Another case is also instructive. The Texas Supreme Court held that “[w]hen the Legislature adopts a federal statute, we presume that it knew of the federal court’s construction of the federal statute when it adopted the statute and intended to adopt that construction.”[14] State courts are not, however, at all consistent in this approach. In the same case quoted above, the Texas Supreme Court followed a line of reasoning different from the majority federal view in applying the analogous Texas statute; the court reasoned that the deliberative privilege exists in Texas law, as it does in the federal law -- but that its scope is narrower than the federal privilege. Thus, it would be unwise to assume that analogous statutory language will be interpreted exactly as it has in the context of the federal act, although federal decisions and decisions from other states likely strengthen an argument.

Other states take varying approaches as to the specificity of the exemptions to the requirement that records must be released. Some states take a very restrictive view of the exemptions in order to promote open government. The Supreme Court of Wisconsin, for instance, has held that “[t]he general presumption of our law is that public records shall be open to the public unless there is a clear statutory exception, unless there exists a limitation under the common law, or unless there is an overriding public interest in keeping the public record confidential.”[15] In another approach, Washington and Maine created committees that have hearings on possibly exempt material and determine the status of the information.

It is beyond the scope of this article to review the statutory and common law for each state. For all states, however, the following four-part inquiry may be used to determine whether a state agency may refuse to disclose an otherwise public record on the grounds that it is privileged under the common interest doctrine.

· First, does the state public records act expressly exempt materials which would be privileged under the common interest doctrine?

· If not, does the state public records act include a “catch-all” provision allowing exemptions for additional statutory or common-law privileges not expressly enumerated?

· If so, does state law recognize the common interest privilege?

· Finally, if the state public records act allows for privileges developed at common law to qualify an otherwise public record to be exempted from disclosure, and the state recognizes the common interest privilege, does the material actually meet the qualifications for something legitimately characterized as privileged under the common interest doctrine?


* Bill Brown served as Ohio Attorney General from 1971-1983 after receiving his law degree from Ohio Northern University. The school later established a NAAG scholarship in his honor. Stephen Nevius is a law student from Ohio Northern Petit College of Law.

[1] 5 U.S.C.S. §552 (LexisNexis 2012).

[2] Id. at § 552(b)(5).

[3] U.S. Department of Justice v. Julian, 486 U.S. 1, 11 (1988) (internal quotations omitted).

[4] See Hunton & Williams v. U.S. Department of Justice, 590 F.3d 272, 274-75 (4th Cir. 2010).

[5] Id.

[6] Id.

[7] Id. at 288.

[8] Id. at 277-281.

[9] Id. at 285-287.

[10] N.M. Stat. Ann. § 14-2-1 (LexisNexis 2012).

[11] Republican Party of New Mexico v. New Mexico Taxation & Revenue Department, 283 P.3d 853, 868-69 (N.M. 2012).

[12] Santa Fe Pacific Gold Corp. v. United Nuclear Corp., 175 P.3d 309, 315-19(N.M. 2007).

[13] Gallagher v. Office of the Attorney General, 787 A.2d 777 (Md. Ct. Spec. App. 2001).

[14] City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000).

[15] Hathaway v. Green Bay School District, 342 N.W.2d 682, 687 (Wis. 1984).

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