Can an agency use FOIA Exemption 5 attorney-client privilege to withhold communications with outside consultants or contractors?

Sometimes, yes — but the privilege does not automatically extend to outsiders. Under the federal Freedom of Information Act, Exemption 5 protects records that would be privileged in civil litigation, including the attorney-client privilege. Whether that privilege reaches communications with an outside consultant or contractor depends on the consultant’s role and how courts have treated similar relationships.

The general rule

The attorney-client privilege protects confidential communications between an agency (the client) and its attorneys made for the purpose of obtaining or giving legal advice. The privilege is normally lost when a communication is voluntarily shared with a third party, because sharing breaks the confidentiality the privilege is meant to preserve.

When a contractor is treated as part of the “client”

Courts have recognized a “functional employee” or consultant approach: an outside party may fall within the privilege when the consultant effectively acts like an agency employee, performs work the agency could have done in-house, and the communication remains confidential and is made to facilitate legal advice. In those situations, looping in the consultant does not necessarily waive the privilege.

Agencies also frequently cite the closely related deliberative process privilege (also under Exemption 5) for pre-decisional, advisory consultant input — and the Supreme Court has recognized a “consultant corollary” allowing certain outside advice to be treated like internal advice.

What this means in practice

• The privilege turns on the substance and confidentiality of the communication, not the label “contractor.”
• Routine, non-legal contractor correspondence generally is not privileged.
• An agency must still review records and release any reasonably segregable non-exempt portions.
• Exemption 5 is discretionary in many cases; agencies may release records even when an exemption could apply.

If you believe an agency over-applied Exemption 5, you can administratively appeal the determination and, in many cases, seek dispute-resolution assistance. For background on requests, timelines (the federal FOIA generally allows 20 business days to respond), and your appeal rights, see /topics/foia-public-records/.

Note that state public-records laws vary widely — their privilege exemptions and procedures differ from the federal FOIA, so always check the specific state statute that applies to your request.