Federal Trade Commission v. Grolier Inc.

Background

The dispute involved a private publisher seeking records from a federal agency about an earlier investigation of a subsidiary company. The agency refused to release several documents, citing the FOIA exemption that covers inter- or intra-agency memoranda not available to parties in litigation. Lower courts split: a District Court sided with the agency, while a Court of Appeals required related or potential litigation before withholding work-product materials.

Reasoning

The central question was whether attorney “work-product” created for litigation stays protected after that litigation ends. The Court found Exemption 5 covers the attorney work-product rule and held such materials are not “routinely” disclosed later. The majority relied on the Federal Rule protecting trial preparation materials and the prevailing view of courts that work product remains immune absent a showing of substantial need. The result reverses the Court of Appeals and favors the agency.

Real world impact

The decision lets agencies keep litigation-preparation papers private even when the case that produced them is over. Requesters under FOIA face higher hurdles to obtain internal legal analyses and strategies. The ruling creates a clear, categorical rule for agencies to apply when deciding FOIA requests about work-product materials.

Dissents or concurrances

A concurring opinion agreed with the Rule-based holding but criticized the Court’s separate FOIA rationale. That opinion would rest solely on the civil discovery rule and warned against treating a majority view of other courts as dispositive under FOIA.