United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2000 Decided January 5, 2001
No. 99-5218
Rockwell International Corporation,
Appellant
v.
U.S. Department of Justice,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 98cv00761)
John Townsend Rich argued the cause for appellant. With
him on the briefs were David B. Beers and Brita Dagmar
Strandberg.
Michael C. Johnson, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: Williams, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Responding to congressional criti-
cism, the Department of Justice prepared an internal report
defending its prosecution of appellant for environmental
crimes allegedly committed at the Rocky Flats nuclear facili-
ty. Although the Department released the text of the report
to the public, it withheld a series of supporting documents,
mostly inter- and intra-agency memoranda written by depart-
ment lawyers. Relying on Exemption 5 of the Freedom of
Information Act, which protects certain inter- and intra-
agency memoranda from disclosure, the Justice Department
rejected appellant's request to release the attachments. Ap-
pellant sued to compel disclosure, and the district court
granted summary judgment for the Department. We affirm.
I
During the Cold War, the Rocky Flats nuclear weapons
plant, located near Denver, Colorado, was responsible, along
with other government facilities, for developing, producing,
and testing America's nuclear weapons. Rocky Flats' partic-
ular task was to manufacture plutonium triggers, or "pits."
U.S. Dep't of Energy, Rocky Flats Closure Project Manage-
ment Plan 3 (1998).
For almost 15 years, from 1975 until 1989, appellant Rock-
well International Corporation operated Rocky Flats under a
contract with the Department of Energy. In the late 1980s,
the Justice Department began investigating Rockwell for
possible criminal violations of environmental laws in connec-
tion with its activities at Rocky Flats. The Denver U.S.
Attorney conducted the investigation with oversight from
"Main Justice" in Washington. In 1992, after lengthy negoti-
ations, Rockwell pled guilty to several violations and paid an
$18.5 million fine. As part of the plea, the Justice Depart-
ment agreed not to prosecute Rockwell employees, and the
EPA and Colorado Department of Health agreed not to seek
additional penalties based on conduct known to the govern-
ment at the time of the plea.
Later that year, responding to public criticism of the plea
agreement, the Investigations and Oversight Subcommittee of
the House Committee on Science, Space and Technology,
chaired by Representative Howard Wolpe, began an investi-
gation of the Rocky Flats prosecution. Although the Depart-
ment initially refused to give the Subcommittee any materials
relating to its internal deliberative processes, it eventually
allowed it to examine privileged documents on the express
condition that they not be made public. In response to
another committee request, four attorneys involved in the
prosecution testified, but on instructions from the Justice
Department refused to answer questions concerning the De-
partment's internal deliberations. The Subcommittee threat-
ened contempt proceedings against the attorneys unless Pres-
ident Bush formally invoked executive privilege on their
behalf. Rather than ask the President to invoke the privi-
lege, the Department allowed the attorneys to testify in
closed recorded sessions before Subcommittee staff.
Following its investigation, the Subcommittee released a
144-page report criticizing the Justice Department for its
"extreme conservatism" in pursuing the Rocky Flats prosecu-
tion. Known as the "Wolpe Report," it criticized the plea
agreement for immunizing Rockwell employees from future
prosecution, for the amount of the fine paid by Rockwell, and
for the "global nature" of the settlement--the fact that the
agreement prohibited both the Colorado Department of
Health and the EPA from later prosecuting Rockwell.
Taking sharp issue with the Wolpe Report, the Justice
Department charged that it was "misleading, incomplete, and
full of inaccuracies." The Department also accused the Sub-
committee of violating the confidentiality agreement by quot-
ing extensively from the closed session interviews with de-
partment officials and from the internal memoranda the
Department had furnished. Claiming that the Subcommittee
distorted the record by quoting selectively from and misquot-
ing these materials, the Department authorized full disclosure
of the transcripts of the closed interviews "so that the ex-
cerpts selectively released by the Subcommittee can be put in
context." Letter from Kevin P. Holsclaw, Acting Assistant
Attorney General, to Hon. George Brown, Jr., Chairman,
House Committee on Science, Space and Technology (Jan. 7,
1993).
Also in response to the Wolpe Report, the Associate Attor-
ney General ordered an internal investigation of the Rocky
Flats prosecution. Completed in April of 1994, the investiga-
tors' report--we will refer to it throughout this opinion as the
"Report"--systematically rebutted each charge leveled by the
Wolpe Subcommittee, concluding that "no basis existed for
[its] sweeping criticisms." In a separate statement, the At-
torney General expressed her hope that the Report would
"put this matter to rest." Statement of the Attorney General
Concerning the Internal Report on the Rocky Flats Prosecu-
tion (April 21, 1994).
Planting the seeds of this litigation, the Report referred to,
cited, and quoted from a set of attachments. These included
public documents relating to the plea negotiations; formal
and informal Justice Department memoranda--some circulat-
ed within the Denver U.S. Attorney's office and others sent
between Denver and Main Justice--discussing and evaluating
the strengths and weaknesses of possible plea negotiation
strategies; memoranda summarizing discussions within the
Department and between Justice, EPA, and Rockwell; draft
letters from the Department to Rockwell regarding the nego-
tiations; and formal and informal communications between
the Department and EPA. These attachments were excluded
from the version of the Report released to the public.
Rockwell filed a FOIA request for the attachments. In
response, the Justice Department released 226 pages of mate-
rials, but withheld an additional 386--mostly internal docu-
ments and inter-agency communications between Justice and
EPA. In doing so, the Department relied on FOIA Exemp-
tion 5, which provides that the statute "does not apply to ...
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." 5 U.S.C. s 552(b)(5). "Courts
have construed this exemption to encompass the protections
traditionally afforded certain documents pursuant to eviden-
tiary privileges in the civil discovery context, including mate-
rials which would be protected under the attorney-client
privilege, the attorney work-product privilege, or the execu-
tive deliberative process privilege." Formaldehyde Inst. v.
Dep't of Health and Human Services, 889 F.2d 1118, 1121
(D.C. Cir. 1989) (internal citations and quotations omitted).
Seeking to compel the Justice Department to disclose the
attachments, Rockwell filed suit in the United States District
Court here, making three basic arguments: (1) because the
Department had extensively cited and quoted from the at-
tachments, it had incorporated them into the Report, and was
thus required to disclose them along with the Report under
FOIA section 552(a)(2)(A), which requires disclosure of agen-
cy final opinions; (2) by disclosing the attachments to Con-
gress, the Department waived their Exemption 5 protection;
(3) by quoting from the attachments, describing their con-
tents, and relying on them to vindicate its handling of the
Rocky Flats prosecution, the Department waived its litigation
privileges for the documents and thus their protection under
Exemption 5. The district court rejected all of Rockwell's
arguments and entered summary judgment for the govern-
ment, finding (1) that because the Report could stand alone
without its supporting documents, Justice had not incorporat-
ed the attachments into the Report; (2) that disclosure to
Congress did not waive Exemption 5 protection for the
attachments; and (3) that the Department did not waive the
attorney-client, deliberative process, or work-product privi-
leges with respect to the attachments. Re-asserting the same
basic arguments, Rockwell now appeals. Our review is de
novo. Nation Magazine v. United States Customs Serv., 71
F.3d 885, 889 (D.C. Cir. 1995).
II
In addition to its general requirement of disclosure, FOIA
directs agencies to index and make available for inspection
and copying "final opinions, including concurring and dissent-
ing opinions, as well as orders, made in the adjudication of
cases...." 5 U.S.C. 552(a)(2)(A). In NLRB v. Sears, Roe-
buck & Co., 421 U.S. 132, 148 (1975), the Supreme Court held
that this provision trumps Exemption 5: parties must disclose
all documents that are agency final opinions, even if they are
inter- or intra-agency memoranda. The Court also held that
"if an agency chooses expressly to adopt or incorporate by
reference an intra-agency memorandum previously covered
by Exemption 5 in what would otherwise be a final opinion,
that memorandum may be withheld only on the ground that it
falls within the coverage of some exemption other than Ex-
emption 5." Id. at 161 (italics omitted).
Relying on Sears, Rockwell argues that Exemption 5 does
not protect the attachments because they were incorporated
by reference into the Report, which, it claims, is an agency
final opinion. The Department responds that the Report is
not a final opinion subject to disclosure under section
552(a)(2)(A) and Sears. Incorporation, it argues, is therefore
irrelevant.
Sears provides general principles for determining whether
an agency document qualifies as a final opinion. At issue in
Sears were Advice and Appeals Memoranda that the NLRB
General Counsel sent to regional directors explaining its
decisions not to pursue particular unfair labor practice
charges. Id. at 135-36. Pointing out that under the National
Labor Relations Act only the General Counsel could file such
complaints, and that the decision not to do so was unappeala-
ble, the Court stated:
The decision to dismiss a charge is a decision in a "case"
and constitutes an "adjudication": an "adjudication" is
defined under the Administrative Procedure Act, of
which [FOIA] is a part, as "agency process for the
formulation of an order"; an "order" is defined as "the
whole or part of a final disposition, whether affirmative
[or] negative ... of an agency in a matter"; and the
dismissal of a charge ... is a "final disposition." Since
an Advice or Appeals Memorandum explains the reasons
for the "final disposition" it plainly qualifies as an "opin-
ion"; and falls within 5 U.S.C. 552(a)(2)(A).
Id. at 158-59 (internal citations and emphasis omitted). In-
terpreting this holding in Bristol-Meyers Co. v. FTC, 598
F.2d 18 (D.C. Cir. 1978), we said: "It appears to us that the
Court meant in Sears to establish as a general principle that
action taken by the responsible decisionmaker in an agency's
decision-making process which has the practical effect of
disposing of a matter before the agency is 'final' for purposes
of FOIA. If such action is accompanied by a written explana-
tion of the decisionmaker's reasoning, that explanation consti-
tutes a 'final opinion' and must be disclosed." Id. at 25.
Invoking Sears and Bristol-Meyers, Rockwell claims that
the Report qualifies as a final opinion because it sets out the
Justice Department's final assessment of the propriety of the
Rocky Flats prosecution--i.e., its conclusion that the prosecu-
tors had not abused their discretion--and explains its decision
to take no further action in regard to Rocky Flats. Pointing
out that the Attorney General has undisputed statutory au-
thority to discipline subordinates and to investigate the han-
dling of prosecutions by the Department, and quoting her
statement that the Report should "put this matter to rest,"
Rockwell contends that the Report represents the final rea-
soning behind the Attorney General's "unreviewable rejection
of the Wolpe Report's detailed charges of prosecutorial mis-
handling." Appellant's Reply Br. at 4.
We confronted a similar claim in Common Cause v. IRS,
646 F.2d 656, 659-60 (D.C. Cir. 1981), where the appellant
sought disclosure of an internal memorandum explaining the
IRS's decision not to adopt a policy requiring public disclo-
sure of contacts between high-ranking federal officials and
the IRS. The memorandum, we decided, was not a final
opinion because the case involved the "voluntary suggestion,
evaluation, and rejection of a proposed policy by an agency,
not the agency's final, unappealable decision not to pursue a
judicial remedy in an adversarial dispute, as was present in
Sears." Id. at 659.
The Report at issue in this case likewise sets forth the
conclusions of a voluntarily undertaken internal agency inves-
tigation, not a conclusion about agency action (or inaction) in
an adversarial dispute with another party. To be sure, the
Attorney General has statutory authority to investigate the
official acts of U.S. Attorneys, but Rockwell nowhere suggests
that the Attorney General had any statutory duty to respond
to the charges in the Wolpe Report. See 28 U.S.C.
s 526(a)(1) (the Attorney General "may investigate the offi-
cial acts ... of the United States attorneys....") (emphasis
added). And far from explaining a decision not to pursue a
judicial remedy, the Report simply rejects as a factual matter
the Congressional charges of prosecutorial misconduct--
charges not put forward in any formal agency or judicial
proceeding. Of course, it is possible that had the Attorney
General found evidence of abuse of prosecutorial discretion,
she might have brought formal charges. But the Report
nowhere contemplated, evaluated, or rejected specific disci-
plinary action against any Justice Department employee.
Acknowledging that there were "no formal agency adjudi-
catory proceedings on the handling of the Rocky Flats prose-
cution," Appellant's Reply Br. at 2, Rockwell claims that the
same was true in Niemeier v. Watergate Special Prosecution
Force, 565 F.2d 967 (7th Cir. 1977). There the Seventh
Circuit concluded that a final report issued by the Watergate
Special Prosecutor explaining his decision not to prosecute
former President Nixon was a final opinion for purposes of
FOIA, even though the prosecutor had neither initiated a
prosecution nor sought an indictment. Id. at 971-72. The
special prosecutor, however, had a statutory duty to issue a
final report. In sharp contrast to this case, moreover, his
decision amounted to a "final, unappealable decision not to
pursue a judicial remedy in an adversarial dispute," Common
Cause, 646 F.2d at 659-60--the dispute between the United
States and the former president.
Because the propriety of the Rocky Flats prosecution was
the subject of neither a "case" nor an "adjudication," we
conclude that the Report does not qualify as a final opinion
that the Department must disclose under section 552(a)(2)(A)
and Sears. We thus agree with the Justice Department that
we need not reach Rockwell's incorporation arguments.
III
Rockwell next argues that the Justice Department waived
Exemption 5 protection for all but three of the attachments
by sending them to Congress. In support of this argument,
Rockwell relies on Dow Jones & Co. v. Dep't of Justice, 917
F.2d 571, 573-75 (D.C. Cir. 1990), where we held that Exemp-
tion 5 did not protect a letter the Justice Department had
sent to the House Ethics Committee. The letter summarized
the results of a Justice Department probe into alleged wrong-
doing by a member of Congress, explaining that while the
Department would be unable to prosecute the representative
for violating any criminal laws, the Committee might want to
consider whether his behavior violated House standards of
conduct. Observing that Exemption 5 protects only inter- or
intra-agency memoranda, and that Congress was not an
"agency" within the meaning of the statute, id. at 574, we
concluded that the letter was not covered by Exemption 5.
In reaching this conclusion, we acknowledged that communi-
cations between an agency and Congress would receive pro-
tection as intra-agency memoranda if they were "part and
parcel of the agency's deliberative process," as in the case of
questionnaires sent from the Justice Department to members
of the Senate. Id. at 575 (emphasis omitted). In Dow Jones,
however, the Department sent the letter to Congress after
concluding its own investigation; in fact, it wrote the letter
for the sole purpose of assisting the Committee with its
deliberations.
Rockwell argues that since the attachments to the Report
were sent to assist the Wolpe Subcommittee in its delibera-
tions, they no longer enjoy Exemption 5 protection. The
district court rejected this argument, as do we. Unlike the
letter in Dow Jones, the attachments are not documents
created specifically to assist Congress, but rather memoranda
and correspondence created as part of the Justice Depart-
ment's deliberative processes--precisely the kind of inter-
and intra-agency memoranda Exemption 5 protects. This
case is thus controlled not by Dow Jones, but by Murphy v.
Dep't of the Army, 613 F.2d 1151, 1155-59 (D.C. Cir. 1979),
where we held that the Army had not waived Exemption 5
protection for an internal legal memorandum by sending it to
a congressman along with a letter. We relied mostly on
FOIA section 552(d) (at the time codified at section 552(c))
which provides: "This section is not authority to withhold
information from Congress." If "disclosure of information to
Congress [were] disclosure to the whole world," we observed,
it would be "inconsistent with the obvious purpose of the
Congress [in 552(d)] to carve out for itself a special right of
access to privileged information," and would "effectively
transform section [552(d)] into a congressional declassification
scheme, a result supported neither by the legislative history
of the Act, nor by general legal principles or common sense."
613 F.2d at 1155-56 (footnotes omitted). As a policy matter,
moreover, "since under such an interpretation every disclo-
sure to Congress would be tantamount to a waiver of all
privileges and exemptions, executive agencies would inevita-
bly become more cautious in furnishing sensitive information
to the legislative branch--a development at odds with public
policy which encourages broad congressional access to gov-
ernmental information." Id. at 1156 (footnote omitted).
These considerations apply with even greater force in this
case. In Murphy, we granted Exemption 5 protection to the
memorandum despite the fact that the Army had made "[n]o
specific request" and the congressman no specific promise to
keep the document confidential. Id. at 1158-59. Here, the
Justice Department gave the documents to the Subcommittee
only after the Subcommittee expressly agreed not to make
them public. Thus, far from intending to waive the attach-
ments' confidentiality, the Justice Department attempted to
preserve it. Under these circumstances, we find no Exemp-
tion 5 waiver.
IV
This brings us to Rockwell's argument that by relying on
and selectively quoting from several attachments, the Justice
Department waived protection for all of them under the
attorney work-product privilege, and thus under Exemption
5. The attorney work-product privilege protects "the files
and the mental impressions of an attorney ... reflected, of
course, in interviews, statements, memoranda, correspon-
dence, briefs ..., and countless other tangible and intangible
ways." Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).
"The purpose of the privilege, however, is not to protect any
interest of the attorney ... but to protect the adversary trial
process itself. It is believed that the integrity of our system
would suffer if adversaries were entitled to probe each other's
thoughts and plans concerning the case." Coastal State Gas
Corp. v. Dep't of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980).
Here, the Department claims that the withheld attachments
are just the kinds of "memoranda" and "correspondence"
containing its "thoughts and plans" about the Rocky Flats
prosecution that warrant work-product privilege protection.
Rockwell does not dispute the Department's claim that the
work-product privilege covers all withheld attachments. In-
stead, it argues that the Justice Department waived the
privilege in two ways. First, it claims that the Department
took "many actions inconsistent with maintaining the confi-
dentiality of its work-product," such as "provid[ing] its work-
product to Congress, request[ing] that the transcript of staff
interviews before the Wolpe Subcommittee be made public,
and publish[ing] portions of its work-product in its Report."
Appellant's Reply Br. at 10 (internal citations omitted). It is
true that although "mere showing of a voluntary disclosure to
a third person ... should not suffice in itself for waiver of the
work-product privilege," disclosure of work-product materials
can waive the privilege for those materials if "such disclosure,
under the circumstances, is inconsistent with the maintenance
of secrecy from the disclosing party's adversary." United
States v. American Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C.
Cir. 1980) (internal citation, quotation, and emphasis omitted).
In our view, however, none of the Department's actions was
inconsistent with keeping the documents secret. We have
already explained that disclosure to Congress did not waive
Exemption 5 protection. As to the transcripts of the staff
interviews, the Department requested that they be released
only after the Wolpe Report quoted from them selectively.
Nor do we see how quoting portions of some attachments is
inconsistent with a desire to keep the rest secret, particularly
in view of the steps the Department took to maintain their
confidentiality, such as securing a promise of confidentiality
from the Subcommittee and withholding the attachments
when releasing the Report. Cf. In re Sealed Case, 676 F.2d
793, 818 (D.C. Cir. 1982) ("The purposes of the work product
privilege are more complex, and they are not inconsistent
with selective disclosure--even in some circumstances to an
adversary.").
Rockwell's second and primary argument is that by making
"testimonial use" of the attachments--by relying on them in
the Report to "put ... to rest" criticisms of the Rocky Flats
prosecution--the Department "waive[d] the privilege with
respect to work-product related to the same subject matter."
Appellant's Reply Br. at 10; see also Appellant's Br. at 29.
For this proposition, the company cites three cases, the first
being United States v. Nobles, 422 U.S. 225 (1975). There,
the defense sought to call an investigator to testify about
interviews he had conducted with witnesses to a crime, but at
the same time to withhold his written report of the interviews
under the work-product privilege. The Supreme Court
agreed with the trial court that the defense could not invoke
the privilege, and that in line with normal trial practice it
would have to provide a copy of relevant portions of the
report to the prosecution for use in cross-examining the
investigator: "[B]y electing to present the investigator as a
witness," the Supreme Court held, the defense "waived the
[work-product] privilege with respect to matters covered in
his testimony." Id. at 239. Although attorneys do not waive
the privilege by using their "notes, documents, and other
internal materials" to present their case, or by relying on
them to examine witnesses, where "counsel attempts to make
a testimonial use of these materials the normal rules of
evidence come into play with respect to cross-examination
and production of documents." Id. at 239 n.14.
In the second case, In re Martin Marietta Corp., 856 F.2d
619 (4th Cir. 1988), a criminal defendant and former employee
of Martin subpoenaed certain company documents for use in
his defense. The Fourth Circuit refused to allow the compa-
ny to invoke the work-product privilege to resist the subpoe-
na, ruling that by having made testimonial use of the docu-
ments in a prior proceeding, it waived the privilege. Though
Martin Marietta had not actually disclosed all requested
documents in the prior case, it had disclosed portions of some
during settlement negotiations, expressly assuring its adver-
sary that it had disclosed all documents relevant to the
settlement as part of a "direct attempt to settle active contro-
versies" between the two parties. Id. at 625. According to
the Fourth Circuit, this constituted "testimonial use" "impli-
edly waiv[ing] the work-product privilege as to all non-opinion
work-product on the same subject matter as that disclosed."
Id.
In Sealed Case, the third case Rockwell cites, we held that
a company could not invoke the work-product privilege to
avoid a grand jury subpoena of certain documents relating to
alleged securities law violations. 676 F.2d at 818-25.
Though the company had not previously disclosed the subpoe-
naed documents, it had disclosed related documents to the
SEC as part of a "voluntary disclosure program," during
which it gave the SEC a report discussing its own possible
securities law violations, together with documents and notes
of interviews upon which the report was based. Id. at 818.
By participating in the disclosure program, we concluded, the
company had in effect agreed to disclose to the SEC all files
relating to the subject matter of the investigation. Id. at
822-23. But we also thought that because the grand jury had
before it the report and attached documents, and because the
withheld documents revealed a "highly embarrassing[ ] ver-
sion of events" at odds with the version described in the
report, id. at 822, the situation was "analogous to the 'testi-
monial use' that the Supreme Court in Nobles held to imply a
waiver":
In the instant case the investigative counsel's final report
refers to files that were furnished to the lawyers prepar-
ing the report, and it purports to reflect the relevant
material in those files. Just as in a criminal trial the
government and the jury have a right to evaluate a
witness' account of his notes he had taken shortly after a
crime by evaluating those notes ... the grand jury [has]
a right to evaluate Company's report by examining the
documents it purports to reflect.
Id. at 822 n.124 (internal citations omitted).
We disagree with Rockwell that these three cases require
disclosure of the attachments. "The test under Exemption 5
is whether the documents would be 'routinely' or 'normally'
disclosed upon a showing of relevance" by a party in litigation
with the agency. FTC v. Grolier Inc., 462 U.S. 19, 26 (1983)
(quoting Sears, 421 U.S. at 148-49). Just because the courts
required disclosure in Nobles, Martin Marietta, and Sealed
Case does not mean that the documents in those cases were
"'routinely' or 'normally' disclos[able] upon a showing of
relevance." To the contrary, all three cases required disclo-
sure at least in part because their particular circumstances
made doing so necessary to protect the adversary system. In
Nobles, the defense attempted to invoke work-product privi-
lege in a way that would have threatened the prosecution's
ability to engage in effective cross-examination. In Martin
Marietta, the company attempted to invoke work-product
privilege in a way that would have threatened an accused's
right to secure evidence in his favor. See 856 F.2d at 621
(discussing the "Sixth Amendment guarantee that an accused
have compulsory process to secure evidence in his favor"). In
Sealed Case, the company attempted to invoke the privilege
in a way that would have blocked a grand jury's access to
relevant evidence, thus deceiving and misleading it. See 676
F.2d at 806 ("Nowhere is the public's claim to each person's
evidence stronger than in the context of a valid grand jury
subpoena."); id. at 822 (noting Company's "sleight-of-hand"
and attempted "manipulation" of the grand jury).
It is conceivable that a case might arise in which testimoni-
al use of work-product documents would in effect lead to a
general waiver of the privilege--where an agency's use of the
documents would mean that virtually any plaintiff suing the
agency on a related matter would be able to obtain disclosure
of those documents. But we need not decide here whether
such circumstances would render the documents "routinely"
or "normally" disclosable for purposes of FOIA, for in this
case, the Justice Department made no testimonial use of the
attachments. It did not use them in an adversary proceed-
ing, nor in anything related to or even remotely resembling
an adversary proceeding, but instead deployed them in a
dispute with a co-equal branch of government and in the
ensuing struggle for public opinion.
Rockwell acknowledges that the Report was not submitted
in an adversary proceeding, but nonetheless argues that
"[t]here is no apparent reason ... why the government
should be able to obtain unfair advantage over members of
the public by choosing selective disclosure of otherwise privi-
leged documents, and such a result is contrary to the spirit of
FOIA." Appellant's Br. at 31. Rockwell misunderstands
FOIA's purposes. Congress intended Exemption 5 to protect
documents covered by the litigation privileges. See Formal-
dehyde Institute, 889 F.2d at 1121. Our decision does pre-
cisely that: it protects the "files and mental impressions" of
Justice Department attorneys preparing the Rocky Flats
prosecution. We are, moreover, untroubled by the notion
that in releasing the Report without the attachments, the
Attorney General may have put only the Department's best
face forward. As we noted earlier, we have allowed "selective
disclosure" of protected documents "even in some circum-
stances to an adversary" in formal litigation. Sealed Case,
676 F.2d at 818. Equally important, especially in view of the
intense controversy surrounding recent executive branch ac-
tions, we think--contrary to Rockwell's assertion--that it
serves the public interest to give attorneys general and other
cabinet officials every incentive to disclose the results of
internal investigations, even if they do so in a way that
presents their agencies in the best possible light. Other ways
exist to hold executive branch officials accountable, such as
congressional oversight hearings and civil litigation.
V
Because the Department claims work-product privilege for
all relevant documents, and because it has not waived the
privilege, the documents are protected by Exemption 5. We
therefore need not consider Rockwell's remaining claims that
the Department waived the attorney-client and deliberative-
process privileges with respect to certain specific attach-
ments. We affirm the judgment of the district court.
So ordered.