10
Opinion of the Court
orandum one that has been received by an agency, to assist it in the performance of its own functions, from a person acting in a governmentally conferred capacity other than on behalf of another agency—e. g., in a capacity as employee or consultant to the agency, or as employee or officer of another governmental unit (not an agency) that is authorized or required to provide advice to the agency." Ibid.2
Typically, courts taking the latter view have held that the exemption extends to communications between Government agencies and outside consultants hired by them. See, e. g., Hoover, supra, at 1138 ("In determining value, the government may deem it necessary to seek the objective opinion of outside experts rather than rely solely on the opinions of government appraisers"); Lead Industries Assn., supra, at 83 (applying Exemption 5 to cover draft reports "prepared by outside consultants who had testified on behalf of the agency rather than agency staff"); see also Government Land Bank v. GSA, 671 F. 2d 663, 665 (CA5 1982) ("Both parties agree that a property appraisal, performed under contract by an independent professional, is an 'intra-agency' document for purposes of the exemption"). In such cases, the records submitted by outside consultants played essentially the same part in an agency's process of deliberation as documents prepared by agency personnel might have done. To be sure, the consultants in these cases were independent contractors and were not assumed to be subject to the degree of control that agency employment could have entailed; nor do we read the cases as necessarily assuming that an outside consultant must be devoid of a definite point of view when the agency contracts for its services. But the fact
2 The majority in Julian did not address the question whether the documents at issue were "inter-agency or intra-agency" records within the meaning of Exemption 5, because it concluded that the documents would be routinely discoverable in civil litigation and therefore would not be covered by Exemption 5 in any event. 486 U. S., at 11-14.
Page: Index Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 NextLast modified: October 4, 2007