EPA v. Mink

In EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973) the Supreme Court looked to the legislative history of exemption 5 under the FOIA. The Mink decision recounts that an "early formulation" of the deliberative process exemption in drafts of the FOIA "came under attack for not sufficiently protecting material dealing with general policy matters not directly related to adjudication or rulemaking." Id. at 90 n.17. Accordingly, the early version of the exemption was rewritten. The one that came to be included in the FOIA was in "substantially its present form." Id. at 91; See also National Wildlife Fed'n v. United States Forest Serv., 861 F.2d 1114, 1118 (9th Cir. 1988) (discussing this legislative history and holding that opinions or recommendations regarding facts or consequences of fact are not automatically ineligible from exemption under exemption 5 and that material is exempt when the disclosure of the manner of selecting or presenting facts would expose the deliberative process).