235 F.3d 598 (D.C. Cir. 2001)
Rockwell International Corporation, Appellantv.U.S. Department of Justice, Appellee
No. 99-5218
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2000Decided January 5, 2001

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:


1
Responding to congressional criticism, the Department of Justice prepared an internal report defending its prosecution of appellant for environmental  crimes allegedly committed at the Rocky Flats nuclear facility.  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 department 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.  Appellant sued to compel disclosure, and the district court  granted summary judgment for the Department.  We affirm.


2
* 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' particular task was to manufacture plutonium triggers, or "pits." U.S. Dep't of Energy, Rocky Flats Closure Project Management Plan 3 (1998).


3
For almost 15 years, from 1975 until 1989, appellant Rockwell 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 connection 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 negotiations, Rockwell pled guilty to several violations and paid an  $18.5 million fine.  As part of the plea, the Justice Department 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 government at the time of the plea.


4
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 investigation of the Rocky Flats prosecution.  Although the Department 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 Department's internal deliberations.  The Subcommittee threatened contempt proceedings against the attorneys unless President Bush formally invoked executive privilege on their  behalf.  Rather than ask the President to invoke the privilege, the Department allowed the attorneys to testify in  closed recorded sessions before Subcommittee staff.


5
Following its investigation, the Subcommittee released a  144-page report criticizing the Justice Department for its  "extreme conservatism" in pursuing the Rocky Flats prosecution.  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.


6
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 Subcommittee of violating the confidentiality agreement by quoting extensively from the closed session interviewswith department officials and from the internal memoranda the  Department had furnished.  Claiming that the Subcommittee  distorted the record by quoting selectively from and misquoting these materials, the Department authorized full disclosure  of the transcripts of the closed interviews "so that the excerpts 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).


7
Also in response to the Wolpe Report, the Associate Attorney General ordered an internal investigation of the Rocky  Flats prosecution.  Completed in April of 1994, the investigators' 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 Attorney 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 Prosecution (April 21, 1994).


8
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 circulated 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 negotiations;  and formal and informal communications between  the Department and EPA.  These attachments were excluded  from the version of the Report released to the public.


9
Rockwell filed a FOIA request for the attachments.  In  response, the Justice Department released 226 pages of materials, but withheld an additional 386--mostly internal documents and inter-agency communications between Justice and  EPA.  In doing so, the Department relied on FOIA Exemption 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. § 552(b)(5).  "Courts  have construed this exemption to encompass the protections  traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context, including materials which would be protected under the attorney-client  privilege, the attorney work-product privilege, or the executive 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).


10
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 attachments, 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 agency final opinions;  (2) by disclosing the attachments to Congress, the Department waived their Exemption 5 protection; (3) by quoting from the attachments, describing their contents, 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 government, finding (1) that because the Report could stand alone  without its supporting documents, Justice had not incorporated the attachments into theReport;  (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 privileges 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

11
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 dissenting opinions, as well as orders, made in the adjudication of  cases...."  5 U.S.C. 552(a)(2)(A).  In NLRB v. Sears, Roebuck & 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 Exemption 5."  Id. at 161 (italics omitted).


12
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.


13
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 unappealable, the Court stated:


14
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 "opinion";  and falls within 5 U.S.C. 552(a)(2)(A).


15
Id. at 158-59 (internal citations and emphasis omitted).  Interpreting 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 decision maker 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 explanation of the decisionmaker's reasoning, that explanation constitutes a 'final opinion' and must be disclosed."  Id. at 25.


16
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 prosecutors 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 authority to discipline subordinates and to investigate the handling 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 reasoning behind the Attorney General's "unreviewable rejection  of the Wolpe Report's detailed charges of prosecutorial mishandling."  Appellant's Reply Br. at 4.


17
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 disclosure 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.


18
The Report at issue in this case likewise sets forth the  conclusions of a voluntarily undertaken internal agency investigation, 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 official 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 disciplinary action against any Justice Department employee.


19
Acknowledging that there were "no formal agency adjudicatory proceedings on the handling of the Rocky Flats prosecution," 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.


20
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

21
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 Exemption 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 wrongdoing 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 interor  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 communications between an agency and Congress would receive protection 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.


22
Rockwell argues that since the attachments to the Report  were sent to assist the Wolpe Subcommittee in its deliberations, 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 Department'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 disclosure to Congress would be tantamount to a waiver of all  privileges and exemptions, executive agencies would inevitably become more cautious in furnishing sensitive information  to the legislative branch--a development at odds with public  policy which encourages broad congressional access to governmental information."  Id. at 1156 (footnote omitted).


23
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 attachments' confidentiality, the Justice Department attempted to  preserve it.  Under these circumstances, we find no Exemption 5 waiver.

IV

24
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, correspondence,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.


25
Rockwell does not dispute the Department's claim that the  work-product privilege covers all withheld attachments.  Instead, 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 confidentiality 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.").


26
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 otherinternal 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.


27
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 company to invoke the work-product privilege to resist the subpoena, ruling that by having made testimonial use of the documents 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 adversary that it had disclosed all documents relevant to the  settlement as part of a "direct attempt to settle active controversies" between the two parties.  Id. at 625.  According to  the Fourth Circuit, this constituted "testimonial use" "impliedly waiv[ing] the work-product privilege as to all non-opinion  work-product on the same subject matter as that disclosed." Id.


28
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 subpoenaed 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[ ] version of events" at odds with the version described in the  report, id. at 822, the situation was "analogous to the 'testimonial use' that the Supreme Court in Nobles held to imply a  waiver":


29
In the instant case the investigative counsel's final report refers to files that were furnished to the lawyers preparing 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.


30
Id. at 822 n.124 (internal citations omitted).


31
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 disclosure 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 privilege 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).


32
It is conceivable that a case might arise in which testimonial 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 proceeding, 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.


33
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 privileged 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 Formaldehyde Institute, 889 F.2d at 1121.  Our decision does precisely 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 circumstances 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 actions, 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

34
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 deliberativeprocess privileges with respect to certain specific attachments.  We affirm the judgment of the district court.


35
So ordered.

