In that sense, In re Steele actually supports a conclusion that exhaustion is a jurisprudential doctrine, rather than a jurisdictional one." Andrus v. Dep't of Energy , 200 F.Supp.3d 1093, 1101 (D. Idaho 2016). Even if it did not, we are confident that the statement in In re Steele is nothing more than a drive-by ruling.

The Fifth Circuit seems to have pioneered this approach in Voinche, with a number of other courts reaching the same result. See, e.g., Calhoun v. F.B.I., 546 F. App'x 487, 490 (5th Cir. 2013); Simon, 2016 W 5109543, at *3-4; Andrus v. U.S. Dep't of Energy, 200 F. Supp. 3d 1093, 1098-1102 (D. Idaho 2016); Ozment v. U.S. Dep't of Homeland Sec., No. 3:11-cv-00429, 2011 WL 6026590, at *3 (M.D. Tenn. Dec. 1, 2011); United Transp. Union Local 418, Burlington Sys. Div. of Bhd. of Maint. of Way Emps. v. Boardman, No. C07-4100-MWB, 2008 WL 2600176, at *7-9 (N.D. Iowa June 24, 2008); Fisher v. U.S. Dep't of Justice, Civ. No. 07-2273 (RBK), 2008 WL 8683024, at *3 (D.N.J. May 9, 2008).

Many courts treat FOIA exhaustion as a prudential, rather than a jurisdictional, bar to district-court litigation. See Hull v. IRS, 656 F.3d 1174, 1181-82 (10th Cir. 2011) ("[W]e seize this opportunity for clarity by joining the majority of our sister circuits in concluding exhaustion under FOIA is a prudential consideration rather than a jurisdictional prerequisite."); Hidalgo, 344 F.3d at 1258 ("[T]he exhaustion requirement is not jurisdictional because the FOIA does not unequivocally make it so."); see also Andrus v. United States Dep't of Energy, 200 F. Supp. 3d 1093, 1101 (D. Idaho 2016) (noting that "a majority of circuits have expressly held that the FOIA exhaustion requirement is a 'jurisprudential' doctrine" and interpreting the Ninth Circuit's opinion in In re Steele to "support[] a conclusion that exhaustion is a jurisprudential doctrine, rather than a jurisdictional one"). But, even so, "exhaustion remains a hurdle that FOIA plaintiffs must generally clear in order to obtain relief through the courts."

In reaching this decision, we recognize that some district courts within our circuit have reached the opposite result. See, e.g., Andrus v. U.S. Dep't of Energy, 200 F. Supp. 3d 1093, 1102 (D. Idaho 2016) (requiring the plaintiff to exhaust a post-lawsuit agency response even though exhaustion is "merely a jurisprudential doctrine," because exhaustion policy considerations "must still carry the day"); cf. San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of the Interior, No. 15-cv-01412, 2016 WL 80631, at *5 (E.D. Cal. Jan. 7, 2016) (declining to decide the issue pending further briefing, but noting that requiring exhaustion was "likely appropriate"). Our decision is dictated by the text and purpose of FOIA.

Moreover, courts generally require exhaustion of administrative remedies before bringing a FOIA claim. Andrus v. United States Dep't of Energy, 200 F. Supp. 3d 1093, 1101-02 (D. Idaho 2016) (exhaustion allows the agency to "exercise its discretion and expertise and the opportunity to make a record for the district court to review.").

The attorney-client privilege protects confidential communications between a client and his or her attorney made for the purpose of obtaining or providing legal assistance. SeeU.S. v. Richey , 632 F.3d 559, 566 (9th Cir. 2011) ; Andrus v. Dep't of Energy , 200 F.Supp.3d 1093, 1106-07 (D. Idaho 2016) (citation omitted). The purpose of this privilege is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."

Under the circumstances present here, the Court finds it appropriate to review the documents the Government withheld under Exemption 7(E). See, e.g., Andrus v. U.S. Dep't of Energy, 2016 WL 4186917, at *10 (D. Idaho Aug. 8, 2016) (as the government's "Vaughn index and affidavits are conclusory and insufficiently detailed, the Court must conduct an in camera review of these documents in order to sufficiently determine whether the [Exemption] has been properly invoked, or whether further disclosure is ultimately appropriate."). Additionally, as the Court has come to a different conclusion than the EPIC court on Documents 1 and 4 (withheld under Exemption 5), the Court will review these documents as for the Exemption 5 withholding in addition to their Exemption 7(E) withholding.