Federal Trade Commission v. Grolier, Inc.

In 1972 the Federal Trade Commission (FTC) (defendant) opened an investigation into a subsidiary of Grolier, Inc. (plaintiff) in connection with a lawsuit filed against Grolier by the United States Department of Justice. In 1976 the lawsuit was dismissed. In 1978 Grolier filed a request with the FTC pursuant to the Freedom of Information Act (FOIA) for internal documents related to the investigation. FOIA required the government to make its records publicly available. The FTC refused to disclose the documents, citing the attorney-work-product exemption to FOIA codified at 5 U.S.C. § 552(b)(5). This exemption, which incorporated the attorney-work-product doctrine, covered internal agency records that would not be available to a party engaged in litigation against the FTC. Grolier filed a lawsuit against the FTC in federal district court, arguing that the attorney-work-product exemption did not apply to the documents, because the Department of Justice’s lawsuit against Grolier had been dismissed. The district court held that the documents were exempt from disclosure under the attorney-work-product exemption. On appeal, the court of appeals held that the documents could not be exempt under the attorney-work-product exemption unless the FTC could show that litigation related to the documents actively or potentially existed. The FTC appealed. The United States Supreme Court granted certiorari.