[Code of Federal Regulations]

[Title 45, Volume 1]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR5.66]



[Page 29-30]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 5_FREEDOM OF INFORMATION REGULATIONS--Table of Contents

 

             Subpart F_Reasons for Withholding Some Records

 

Sec.  5.66  Exemption five: Internal memoranda.



    This exemption covers internal government communications and notes 

that fall within a generally recognized evidentiary privilege. Internal 

government communications include an agency's communications with an 

outside consultant or other outside person, with a court, or with 

Congress, when those communications are for a purpose similar to the 

purpose of privileged intra-agency communications. Some of the most-

commonly applicable privileges are described in the following 

paragraphs.

    (a) Deliberative process privilege. This privilege protects 

predecisional deliberative communications. A communication is protected 

under this privilege if it was made before a final decision was reached 

on some question of policy and if it expressed recommendations or 

opinions on that question. The purpose of the privilege is to prevent



[[Page 30]]



injury to the quality of the agency decisionmaking process by 

encouraging open and frank internal policy discussions, by avoiding 

premature disclosure of policies not yet adopted, and by avoiding the 

public confusion that might result from disclosing reasons that were not 

in fact the ultimate grounds for an agency's decision. Purely factual 

material in a deliberative document is within this privilege only if it 

is inextricably intertwined with the deliberative portions so that it 

cannot reasonably be segregated, if it would reveal the nature of the 

deliberative portions, or if its disclosure would in some other way make 

possible an intrusion into the decisionmaking process. We will release 

purely factual material in a deliberative document unless that material 

is otherwise exempt. The privilege continues to protect predecisional 

documents even after a decision is made.

    (b) Attorney work product privilege. This privilege protects 

documents prepared by or for an agency, or by or for its representative 

(typically, HHS attorneys) in anticipation of litigation or for trial. 

It includes documents prepared for purposes of administrative 

adjudications as well as court litigation. It includes documents 

prepared by program offices as well as by attorneys. It includes factual 

material in such documents as well as material revealing opinions and 

tactics. Finally, the privilege continues to protect the documents even 

after the litigation is closed.

    (c) Attorney-client communication privilege. This privilege protects 

confidential communications between a lawyer and an employee or agent of 

the government where there is an attorney-client relationship between 

them (typically, where the lawyer is acting as attorney for the agency 

and the employee is communicating on behalf of the agency) and where the 

employee has communicated information to the attorney in confidence in 

order to obtain legal advice or assistance.