Rockwell International Corp. v. U.S. Department of Justice

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.