NASA FOIA 21-HQ-F-00500

2
HQ-F-00470, and are providing you with the response letters and records issued in response
to that FOIA request.1
With respect to OGC, a search of that office using information provided in your request
located records responsive to your request. We reviewed both the FOIA Office and OGC
records under the FOIA to determine whether they may be disclosed to you. Based on that
review, this office is providing the following:
207 page(s) are released in full (RIF);
7 page(s) are released in part (RIP);
31 page(s) are withheld in full (WIF);2
13 page(s) not provided were referred to another entity.
NASA redacted from the enclosed documents certain information pursuant to the following
FOIA exemptions:
Exemption 5, 5 U.S.C. § 552(b)(5)
Exemption 5 protects “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. § 552(b)(5). Courts interpret Exemption 5 to incorporate three primary privileges:
the attorney work-product privilege, the attorney-client privilege and the deliberative process
privilege. NASA invokes the attorney work-product privilege, and the deliberative process
privilege.
The attorney work-product (AWP) privilege protects documents prepared by an attorney in
contemplation of litigation. It protects material prepared by an attorney or others in
anticipation of litigation, preserving the adversarial trial process by protecting material which
would disclose the attorney’s theory of the case or trial strategy. The AWP privilege also
protects materials that reflect the mental processes of the attorney, when the materials were
prepared in anticipation of litigation or for trial. An agency can satisfy the “anticipation of
litigation” standard by “demonstrating that one of its lawyers prepared a document in the
course of an investigation that was undertaken with litigation in mind,” even if no specific
lawsuit has begun. In your case, the information withheld contains NASA attorneys’ opinions,
theories of the case, discussion of the facts, assessments of facts, and impressions of the issues
presented. For these reasons, NASA withholds the information under the AWP privilege of
exemption 5. NASA considered the foreseeable harm that would result from the release of this
information and determined that its release would hinder the ability of agency counsel to
effectively prepare for and defend the agency in litigation.
1 Please note that records were previously referred to the U.S. Department of State’s FOIA Office for processing
and direct response to the prior FOIA requester; however, because that agency released the referred records in
full, they advised we could also release them to you. Thus, they are enclosed with this response.
2 Some of the records withheld in full consist of drafts, the final versions of which were filed with the court by
the U.S. Department of Justice during the subject litigation and were not located within NASA’s files. The final
versions are available in their entirety via the Public Access to Court Electronic Records (PACER) website at
https://pacer.uscourts.gov/. You may wish to create a PACER account and search for civil case number 03-2509
for instant access to all the filings regarding that case.