Department of Interior v. Klamath Water Users Protective Assn.

Citation532 U.S. 1
Decision Date05 March 2001
Docket NumberNo. 99-1871.,99-1871.
PartiesDEPARTMENT OF THE INTERIOR et al. v. KLAMATH WATER USERS PROTECTIVE ASSOCIATION
CourtUnited States Supreme Court

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

COPYRIGHT MATERIAL OMITTED

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Souter, J., delivered the opinion for a unanimous Court.

Malcolm L. Stewart argued the cause for petitioners. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Leonard Schaitman, Matthew M. Collette, John Leshy, and Scott Bergstrom.

Andrew M. Hitchings argued the cause for respondent. With him on the brief were Paul S. Simmons and Donald B. Ayer.*

Justice Souter, delivered the opinion of the Court.

Documents in issue here, passing between Indian Tribes and the Department of the Interior, addressed tribal interests subject to state and federal proceedings to determine water allocations. The question is whether the documents are exempt from the disclosure requirements of the Freedom of Information Act, as "intra-agency memorandums or letters" that would normally be privileged in civil discovery. 5 U. S. C. § 552(b)(5). We hold they are not.

I

Two separate proceedings give rise to this case, the first a planning effort within the Department of the Interior's Bureau of Reclamation, and the second a state water rights adjudication in the Oregon courts. Within the Department of the Interior, the Bureau of Reclamation (Reclamation) administers the Klamath Irrigation Project (Klamath Project or Project), which uses water from the Klamath River Basin to irrigate territory in Klamath County, Oregon, and two northern California counties. In 1995, the Department began work to develop a long-term operations plan for the Project, to be known as the Klamath Project Operation Plan (Plan), which would provide for allocation of water among competing uses and competing water users. The Department asked the Klamath as well as the Hoopa Valley, Karuk, and Yurok Tribes (Basin Tribes) to consult with Reclamation on the matter, and a memorandum of understanding between the Department and the Tribes recognized that "the United States Government has a unique legal relationship with Native American tribal governments," and called for "assessment, in consultation with the Tribes, of the impacts of the Plan on Tribal trust resources." App. 59, 61.

During roughly the same period, the Department's Bureau of Indian Affairs (Bureau) filed claims on behalf of the Klamath Tribe alone in an Oregon state-court adjudication intended to allocate water rights. Since the Bureau is responsible for administering land and water held in trust for Indian tribes, 25 U. S. C. § 1a; 25 CFR subch. H, pts. 150-181 (2000), it consulted with the Klamath Tribe, and the two exchanged written memorandums on the appropriate scope of the claims ultimately submitted by the United States for the benefit of the Klamath Tribe. The Bureau does not, however, act as counsel for the Tribe, which has its own lawyers and has independently submitted claims on its own behalf.1

Respondent, the Klamath Water Users Protective Association (Association), is a nonprofit association of water users in the Klamath River Basin, most of whom receive water from the Klamath Project, and whose interests are adverse to the tribal interests owing to scarcity of water. The Association filed a series of requests with the Bureau under the Freedom of Information Act (FOIA), 5 U. S. C. § 552, seeking access to communications between the Bureau and the Basin Tribes during the relevant time period. The Bureau turned over several documents but withheld others as exempt under the attorney work-product and deliberative process privileges. These privileges are said to be incorporated in FOIA Exemption 5, which exempts from disclosure "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." § 552(b)(5). The Association then sued the Bureau under FOIA to compel release of the documents.

By the time of the District Court ruling, seven documents remained in dispute, three of them addressing the Plan, three concerned with the Oregon adjudication, and the seventh relevant to both proceedings. See 189 F. 3d 1034, 1036 (CA9 1999), App. to Pet. for Cert. 41a-49a. Six of the documents were prepared by the Klamath Tribe or its representative and were submitted at the Government's behest to the Bureau or to the Department's Regional Solicitor; a Bureau official prepared the seventh document and gave it to lawyers for the Klamath and Yurok Tribes. See ibid.

The District Court granted the Government's motion for summary judgment. It held that each document qualified as an inter-agency or intra-agency communication for purposes of Exemption 5, and that each was covered by the deliberative process privilege or the attorney work-product privilege, as having played a role in the Bureau's deliberations about the Plan or the Oregon adjudication. See 189 F. 3d, at 1036, App. to Pet. for Cert. 31a-32a, 56a-65a.

The Court of Appeals for the Ninth Circuit reversed. 189 F. 3d 1034 (1999). It recognized that some Circuits had adopted a "functional" approach to Exemption 5, under which a document generated outside the Government might still qualify as an "intra-agency" communication. See id., at 1037-1038. The court saw no reason to go into that, however, for it ruled out any application of Exemption 5 on the ground that "the Tribes with whom the Department has a consulting relationship have a direct interest in the subject matter of the consultations." Id., at 1038. The court said that "to hold otherwise would extend Exemption 5 to shield what amount to ex parte communications in contested proceedings between the Tribes and the Department." Ibid. Judge Hawkins dissented, for he saw the documents as springing "from a relationship that remains consultative rather than adversarial, a relationship in which the Bureau and Department were seeking the expertise of the Tribes, rather than opposing them." Id., at 1045. He saw the proper enquiry as going not to a document's source, but to the role it plays in agency decisionmaking. See id., at 1039. We granted certiorari in view of the decision's significant impact on the relationship between Indian tribes and the Government, 530 U. S. 1304 (2000), and now affirm.

II

Upon request, FOIA mandates disclosure of records held by a federal agency, see 5 U. S. C. § 552, unless the documents fall within enumerated exemptions, see § 552(b). "These limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act," Department of Air Force v.Rose, 425 U. S. 352, 361 (1976); "consistent with the Act's goal of broad disclosure, these exemptions have been consistently given a narrow compass," Department of Justice v. Tax Analysts, 492 U. S. 136, 151 (1989); see also FBI v. Abramson, 456 U. S. 615, 630 (1982) ("FOIA exemptions are to be narrowly construed").

A

Exemption 5 protects from disclosure "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). To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.

Our prior cases on Exemption 5 have addressed the second condition, incorporating civil discovery privileges. See, e. g., United States v. Weber Aircraft Corp., 465 U. S. 792, 799-800 (1984); NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 148 (1975) ("Exemption 5 withholds from a member of the public documents which a private party could not discover in litigation with the agency"). So far as they might matter here, those privileges include the privilege for attorney workproduct and what is sometimes called the "deliberative process" privilege. Work product protects "mental processes of the attorney," United States v. Nobles, 422 U. S. 225, 238 (1975), while deliberative process covers "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated," Sears, Roebuck & Co., 421 U. S., at 150 (internal quotation marks omitted). The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance "the quality of agency decisions," id., at 151, by protecting open and frank discussion among those who make them within the Government, see EPA v. Mink, 410 U. S. 73, 86-87 (1973); see also Weber Aircraft Corp., supra, at 802.

The point is not to protect Government secrecy pure and simple, however, and the first condition of Exemption 5 is no less important than the second; the communication must be "inter-agency or intra-agency." 5 U. S. C. § 552(b)(5). Statutory definitions underscore the apparent plainness of this text. With exceptions not relevant here, "agency" means "each authority of the Government of the United States," § 551(1), and "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government . . . , or any independent regulatory agency," § 552(f).

Although neither the terms of the exemption nor the statutory definitions say anything about communications with outsiders, some Courts of Appeals have held that in some circumstances a document prepared outside the Government may nevertheless qualify as an "intra-agency" memorandum under Exemption 5. See, e. g., Hoover v. Dept. of...

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