The opinion of the court was delivered by: PIERCE
Defendant in this civil penalty action moved for an order compelling discovery of certain documents pursuant to Rule 37(a) Fed. R. Civ. P. By order of this Court dated July 2, 1975, the motion was referred to Magistrate Raby. The Magistrate's report was received by this Court on September 9, 1975. That report stated that of the seven categories of documents requested by defendant, three categories were no longer at issue. As to the four remaining categories, the Magistrate concluded that all documents sought were immune from disclosure by virtue of Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5). The Magistrate reached this conclusion after having ordered in camera review of documents in Category One; he did not review documents in Categories Three, Six or Seven.
Counsel for defendant filed timely objections to the recommendations of the Magistrate, and those objections were received by this Court on September 18, 1975. On September 22, 1975 this Court issued an order to counsel for plaintiff, directing production of the relevant documents for in camera review. The order further directed counsel for plaintiff to furnish the Court with an affidavit of a person with personal knowledge to the effect that all documents described in Document Categories One, Six and Seven required by law to be disclosed as policy of the Federal Trade Commission related to this case had been in fact furnished to defendant. In an affidavit filed October 3, 1975, counsel for plaintiff declined to supply such a statement, stating that such a statement called for a legal conclusion to which neither counsel nor any employee of the Commission was competent to swear under oath. On October 8, the Court directed counsel for plaintiff to comply with the order of September 22, 1975. Thereafter, on October 10, 1975, counsel for plaintiff provided the Court with an affidavit listing six documents which had been sent to defendant and stating that said documents constitute all documents required by law to be disclosed as policy of the Commission related to this case. By October 16, 1975, all documents in the possession of the plaintiff described in Documents Categories One, Three, Six and Seven had been produced for review in camera. The Court has carefully reviewed fifteen different documents in Category One, and directs that three of those documents be furnished to defendant in that they constitute "final opinions" of an agency and "instructions to staff that affect a member of the public." 5 U.S.C. § 552(a)(2)(A) and (C). As regards the other twelve documents in Category One, the Court concludes that they are immune from disclosure as predecisional intra-agency memoranda. 5 U.S.C. § 552(b)(5). As regards Category Three, the Court concludes that all twenty-three documents in that category are immune from disclosure by virtue of § 552(b)(5), § 552(b)(7) and the rule of Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947). Categories Six and Seven, treated by all parties as one category, contain nineteen documents. The Court concludes that these documents are predecisional intra-agency memoranda immune from disclosure by virtue of § 552(b)(5). A discussion of the nature of the documents and the applicable law follows.
In its original request to produce, defendant asked for copies of all records in the possession, custody, or control of plaintiff or of the Federal Trade Commission which were prepared during the period from November 24, 1967 to and including November 28, 1969, and which consist of (1) instructions or directives from the Commission or members thereof to any employee of the Commission relating to interpretation of or compliance with the modified cease and desist order issued by the Commission on November 24, 1967, against defendant. However, plaintiff then refused to produce said documents, relying upon 5 U.S.C. § 552(b)(5) and (7). The documents produced for the inspection of the Court under Category One fall into six sub-categories:
a. Direction by the Commission to various staff personnel to prepare drafts of documents for Commission consideration. (Nos. 1, 6, 7, 9, 13, 15).
b. Direction by the Commission that certain alterations be made in drafts of documents currently under consideration. (Nos. 4, 4a, 8, 10, 12, 14).
c. Opinions and requests of various individual Commissioners. (Nos. 7, 15).
d. Direction by the Commission to the staff to conduct an investigation. (No. 11).
e. Direction by the Commission to the staff to perform certain acts in preparation for a public hearing and the procedures to be followed at that hearing. (Nos. 2, 3).
f. Direction by the Commission that a certain document be placed on the public record. (No. 5).
In evaluating any claim of exemption under § 552(b)(5) of the Freedom of Information Act, there are a number of general principles which must be considered. Initially, all agency documents sought are available unless specifically exempt. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975). All of the documents at issue here were doubtless produced by an "agency" within the meaning of the Information Act, and the documents are "identifiable records" under the Act. Id. at 147.
As regards Exemption 5 (§ 552(b)(5)), which exempts "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 cases have evolved at least five general principles. The first is that Exemption 5 covers predecisional memorandums which are part of the deliberative process but does not exempt post-decisional memoranda which serve merely to explain a decision already made. Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 183-84, 44 L. Ed. 2d 57, 95 S. Ct. 1491 (1975); NLRB v. Sears, supra, at 152; Sterling Drug v. FTC, 146 U.S. App. D.C. 237, 450 F.2d 698, 706 (1971). Second, Exemption 5 embraces the attorney work product privilege of Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947). NLRB v. Sears, supra, at 154. Third, Exemption 5 protects the deliberative or policy-making process but does not exempt purely factual or scientific information. EPA v. Mink, 410 U.S. 73, 89, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973).
Fourth, where it is clear that an agency has adopted material in an otherwise exempt document as the basis of a non-exempt decision, some courts have held that the adopted material loses its immune status. See, e.g., Sterling Drug v. FTC, 146 U.S. App. D.C. 237, 450 F.2d 698, 706-08 (1971); American Mail Line, Ltd. v. Gulick, 133 U.S. App. D.C. 382, 411 F.2d 696 (1968).
Fifth, § 552(a)(2)(A) and (C) require that each agency shall make public all "final opinions" and "administrative staff manuals and instructions to staff that affect a member of the public." Counsel for defendant urge a broad reading of this subsection, asserting that whenever the Commission instructed its staff to take any action relating to J. B. Williams Co., that act necessarily involved an instruction which affected a member of the public. However, the caselaw does not support this interpretation. In NLRB v. Sears, supra, the lower court held that NLRB Advice and Appeals memoranda prepared by the General Counsel of the NLRB instructing Regional Directors whether or not to file suit were "instructions" under § 552(a)(2)(C). 346 F. Supp. 751, 754 (D.D.C. 1972). However, the Supreme Court, in reversing the judgment on other grounds, did not reach ...