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decided: March 20, 1984.



Stevens, J., delivered the opinion for a unanimous Court.

Author: Stevens

[ 465 U.S. Page 793]

 JUSTICE STEVENS delivered the opinion of the Court.

The Freedom of Information Act (FOIA), 5 U. S. C. ยง 552 (1982 ed.), requires federal agencies to disclose records*fn1 that

[ 465 U.S. Page 794]

     do not fall into one of nine exempt categories.*fn2 The question presented is whether confidential statements obtained during an Air Force investigation of an air crash are protected from disclosure by Exemption 5, which exempts "inter-agency or intra-agency memorandums or letters which would not be

[ 465 U.S. Page 795]

     available by law to a party other than an agency in litigation with the agency."


On October 9, 1973, the engine of an Air Force F-106B aircraft failed in flight. Captain Richard Hoover, the pilot, was severely injured when he ejected from the plane. Under Air Force regulations, the incident was a significant air crash that required two separate investigations: a "collateral investigation" and a "safety investigation."

The collateral investigation is conducted "to preserve available evidence for use in claims, litigation, disciplinary actions, administrative proceedings, and all other purposes."*fn3 Witnesses in a collateral investigation testify under oath and generally are protected by the procedural safeguards that are applicable in other formal hearings. The record of the collateral investigation is public.

The safety investigation is quite different. It is conducted by a specially appointed tribunal which prepares a report that is intended for "the sole purpose of taking corrective action in the interest of accident prevention."*fn4 To encourage witnesses to speak fully and frankly, they are not sworn and receive an assurance that their statements will not be used for any purpose other than accident prevention.*fn5 Air Force regulations contain a general prohibition against the release of safety investigation reports and their attachments,*fn6 subject to an exception which allows the Judge Advocate General to release specified categories of "factual material" and "non-personal evidence."*fn7

[ 465 U.S. Page 796]

     After the collateral and safety investigations had been completed, Captain Hoover filed a damages action against various entities responsible for the design and manufacture of his plane's ejection equipment.*fn8 During pretrial discovery in that litigation, two of the parties (respondents Weber*fn9 and Mills*fn10) sought discovery of all Air Force investigative reports pertaining to the accident. The Air Force released the entire record of the collateral investigation, as well as certain factual portions of the safety investigation, but it refused to release the confidential portions of the safety investigation.

Confidential statements made to air crash safety investigators were held to be privileged with respect to pretrial discovery over 20 years ago. Machin v. Zukert, 114 U. S. App. D.C. 335, 316 F.2d 336, cert. denied, 375 U.S. 896 (1963). That holding effectively prevented respondents from obtaining the pretrial discovery they sought -- specifically the unsworn statements given by Captain Hoover and by the airman who had rigged and maintained his parachute equipment. Respondents therefore filed requests for those statements under the FOIA, and when the Air Force refused production, they commenced this action.

In the District Court the Government filed an affidavit executed by the General responsible for Air Force safety investigations, explaining that the material that had been withheld

[ 465 U.S. Page 797]

     contained "conclusions, speculations, findings and recommendations made by the Aircraft Mishap Investigators" as well as "testimony provided by witnesses under a pledge of confidentiality." App. 38. The affidavit explained why the General believed that the national security would be adversely affected by the disclosure of such material.*fn11 The District Court held that the material at issue would not be available by law to a party other than an agency in litigation with an agency, and hence need not be disclosed by virtue of

[ 465 U.S. Page 798]

     Exemption 5.*fn12 The Court of Appeals reversed. 688 F.2d 638 (CA9 1982). It agreed that the requested documents were "intra-agency memorandums" within the meaning of Exemption 5, and that they were protected from civil discovery under the Machin privilege. It held, however, that the statutory phrase "would not be available by law" did not encompass every civil discovery privilege but rather reached only those privileges explicitly recognized in the legislative history of the FOIA. It read that history as accepting an executive privilege for predecisional documents containing advice, opinions, or recommendations of Government agents, but as not extending to the Machin civil discovery privilege for official Government information. It accordingly remanded the case with directions to disclose the factual portions of the witnesses' statements.


The plain language of the statute itself, as construed by our prior decisions, is sufficient to resolve the question presented. The statements of the two witnesses are unquestionably "intra-agency memorandums or letters"*fn13 and, since the Machin privilege normally protects them from discovery in civil litigation, they "would not be available by law to a party other than [the Air Force] in litigation with [the Air Force]."*fn14

[ 465 U.S. Page 799]

     Last Term, in FTC v. Grolier Inc., 462 U.S. 19 (1983), we held that Exemption 5 simply incorporates civil discovery privileges: "The test under Exemption 5 is whether the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance." Id., at 26.*fn15 Thus, since the Machin privilege is well recognized in the case law as precluding routine disclosure of the statements, the statements are covered by Exemption 5.

Grolier was consistent with our prior cases. For example, Grolier itself relied on Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (1975), which Grolier quoted on the scope of Exemption 5: "'Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context.'" 462 U.S., at 26-27 (emphasis added in Grolier) (quoting 421 U.S., at 184). Similarly, in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), we wrote: "Exemption 5 withholds from a member of the public documents which a private party could not discover in litigation with the agency." Id., at 148.*fn16 In Federal Open Market Committee v. Merrill, 443 U.S. 340 (1979), we wrote: "The House Report [on the FOIA] states that Exemption 5 was intended to

[ 465 U.S. Page 800]

     allow an agency to withhold intra-agency memoranda which would not 'routinely be disclosed to a private party through the discovery process in litigation with the agency . . . .'" Id., at 353 (quoting H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966)). And in EPA v. Mink, 410 U.S. 73 (1973), the Court observed: "This language clearly contemplates that the public is entitled to all such memoranda or letters that a private party could discover in litigation with the agency." Id., at 86.*fn17

Respondents read Merrill as limiting the scope of Exemption 5 to privileges explicitly identified by Congress in the legislative history of the FOIA. But in Merrill we were confronted with a claimed exemption that was not clearly covered by a recognized pretrial discovery privilege. We held that Exemption 5 protected the Federal Open Market Committee's Domestic Policy Directives although it was not entirely clear that they fell within any recognized civil discovery privilege because statements in the legislative history supported an inference that Congress intended to recognize such a privilege. See 443 U.S., at 357-360. Thus, the holding of Merrill was that a privilege that was mentioned in the legislative history of Exemption 5 is incorporated by the Exemption -- not that all privileges not mentioned are excluded.

[ 465 U.S. Page 801]

     Moreover, the Merrill dictum upon which respondents rely merely indicates "that it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery." Id., at 354. It is one thing to say that recognition under Exemption 5 of a novel privilege, or one that has found less than universal acceptance, might not fall within Exemption 5 if not discussed in its legislative history. It is quite another to say that the Machin privilege, which has been well settled for some two decades, need be viewed with the same degree of skepticism.*fn18 In any event, the Merrill dictum concludes only that "a claim that a privilege other than executive privilege or the attorney privilege is covered by Exemption 5 must be viewed with caution." 443 U.S., at 355. The claim of privilege sustained in Machin was denominated as one of executive privilege. See 114 U. S. App. D.C., at 337, 316 F.2d, at 338.*fn19 Hence the dictum is of little aid to respondents.

Moreover, respondents' contention that they can obtain through the FOIA material that is normally privileged would create an anomaly in that the FOIA could be used to supplement civil discovery. We have consistently rejected such a construction of the FOIA. See Baldrige v. Shapiro, 455 U.S. 345, 360, n. 14 (1982); NLRB v. Sears, Roebuck & Co., 421 U.S., at 143, n. 10; Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974). We do not

[ 465 U.S. Page 802]

     think that Congress could have intended that the weighty policies underlying discovery privileges could be so easily circumvented.*fn20

Finally, the legislative history of Exemption 5 does not contain the kind of compelling evidence of congressional intent that would be necessary to persuade us to look beyond the plain statutory language. Because of the difficulty inherent in compiling an exhaustive list of evidentiary privileges,*fn21 it would be impractical to treat the legislative history of Exemption 5 as containing a comprehensive list of all privileges Congress intended to adopt. Rather, the history of Exemption 5 can be understood by means of "rough analogies." EPA v. Mink, supra, at 86. The legislative history of Exemption 5 indicates that Congress intended to incorporate governmental privileges analogous to the Machin privilege. That history recognizes a need for claims of privilege when confidentiality is necessary to ensure frank and open discussion and hence efficient governmental operations. See Grolier, 462 U.S., at 27-28; Merrill, 443 U.S., at 359; Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S., at 186, 189-190; NLRB v. Sears, Roebuck & Co., supra, at 150-152; Mink, supra, at 86-89; H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966); S. Rep.

[ 465 U.S. Page 803]

     No. 813, 89th Cong., 1st Sess., 9 (1965).*fn22 The Machin privilege was recognized for precisely this reason.*fn23 Thus, the Machin privilege is sufficiently related to the concerns expressed in the legislative history*fn24 that we cannot say that the legislative history demonstrates that the statute should not be construed to mean what it says with respect to the Machin privilege.*fn25

[ 465 U.S. Page 804]

     We therefore simply interpret Exemption 5 to mean what it says. The judgment of the Court of Appeals is



688 F.2d 638, reversed.


* Briefs of amici curiae urging affirmance were filed for the Reporters Committee for Freedom of the Press et al. by Karen Syma Shinberg Czapanskiy ; for United States Forgecraft Corp. by Donald A. Way ; and for Inderjit Badhwar et al. by Raymond D. Battocchi and Alfred F. Belcuore.

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