agency policy. It is therefore protected by the deliberative process privilege.
Finally, document 15 has also been partially released, but portions continue to be withheld pursuant to the deliberative process privilege. The whole document was prepared at the request of the Director of the Office of the Executive Secretariat for comments on an Inspector General's Report. The withheld portions of the document contain recommendations for a course of action in response to the Report, proposed interpretations of regulations, and opinions of the author on the report. The document appears to be both predecisional and deliberative, and is therefore protected by the deliberative process privilege.
Because we find the work-product privilege applicable to documents 1-11, there is no need for us to detail the applicability of the deliberative process privilege to these documents.
III. Segregable Factual Material
The Commonwealth's final argument in this case is that, even though various privileges may apply to the withheld documents, segregable factual information must be released and in camera inspection is the most appropriate method of determining the segregable material. We disagree.
First, with regard to the material appropriately withheld pursuant to the work-product privilege, release of segregable factual information is not required. As noted earlier, the work-product privilege of exemption 5 protects from disclosure all material not "normally" or "routinely" disclosed under Rule 26 (b) (3). The rule requires that factual information collected or prepared in anticipation of litigation be disclosed "only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Under the FOIA, then, such factual material is exempt from disclosure, even if segregable, because it is not "normally" or "routinely" discoverable in a civil context. See Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 27-28, 76 L. Ed. 2d 387, 103 S. Ct. 2209 (1983) ("under the current state of the law relating to the privilege, work-product materials are immune from discovery unless the one seeking discovery can show substantial need in connection with subsequent litigation . . . . It is not difficult to imagine litigation in which one party's need for otherwise privileged documents would be sufficient to override the privilege but that does not remove the documents from the category of the normally privileged.")
Although segregable factual material is protected by the work-product privilege of exemption 5, it is not protected by the deliberative process privilege. See Environmental Protection Agency v. Mink, 410 U.S. 73, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973). In this case, the government has already released significant portions of three out of the four documents for which it claimed solely the deliberative process privilege. The Commonwealth, however, claims that the government is refusing to disclose segregable factual material, and urges that "ultimately the Court must have the documents before it to make an informed decision on the issue of segregability." Plaintiff's Brief in Opposition to Motion for Summary Judgment Filed by Defendants, at 5.
We do not find that this case is an appropriate one for in camera review. In camera inspections of documents in the FOIA context are not favored because they are conducted without the benefit of the adversary process and because they are not a "wise use of increasingly burdened judicial resources." Mead Data Central, Inc., 566 F.2d at 262. Where the government has provided a detailed index and justification for withholding each of the documents, "a district court need not conduct its own in camera search for segregable nonexempt information unless the agency response is vague, its claim too sweeping, or there is a reason to suspect bad faith." Id.
We find nothing vague about the descriptions of the withheld portions of documents 12-15. Further, the Commonwealth has suggested no bad faith, nor do we find any reason to suspect bad faith, especially given the extensive disclosure of segregable factual material already made from documents 13-15. We therefore will order no further disclosure, nor will we order an in camera review of the documents.
Because we find that summary judgment is appropriate in this case at this time, we see no reason to address defendant's motion for a protective order. No further discovery need take place.
AND NOW, this 18th day of November, 1985, IT IS ORDERED that summary judgment be and is hereby entered in the above-captioned matter in favor of defendant and against plaintiff.
The Clerk of Court is directed to close the file.
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