Madison County, N. Y. v. U.S. Dept. of Justice, s. 80-1562

• Decision Date: 03 March 1981
• Docket Number: Nos. 80-1562,80-1589,s. 80-1562
• Citation: 641 F.2d 1036
• Parties: 7 Media L. Rep. 1029 COUNTY OF MADISON, NEW YORK et al., Plaintiffs, Appellees, v. UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants, Appellants. COUNTY OF MADISON, NEW YORK et al., Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1036

641 F.2d 1036

7 Media L. Rep. 1029

COUNTY OF MADISON, NEW YORK et al., Plaintiffs, Appellees, v. UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants, Appellants.

COUNTY OF MADISON, NEW YORK et al., Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant, Appellee.

Nos. 80-1562, 80-1589.

United States Court of Appeals, First Circuit.

Argued Dec. 1, 1980.

Decided March 3, 1981.

Tobin N. Harvey, Boston, Mass., with whom Allan van Gestel, and Goodwin, Procter & Hoar, Boston, Mass., on briefs, for County of Madison, New York, et al.

Bruce N. Bagni, Atty., Civ. Div., Dept. of Justice, Washington, D.C., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., Alice Daniel, Asst. Atty. Gen., and Leonard Schaitman, Atty., Civil Division, Dept. of Justice, Washington, D. C., on briefs, for United States Department of Justice, et al.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

We consider in these appeals whether the Freedom of Information Act (FOIA), 5 U.S.C. § 552, requires that government documents relating to the settlement of a lawsuit involving the government be disclosed, or whether they may be instead withheld either under exemption five of the Act the privileged inter- or intra-agency exemption ¹ or under a broader equitable exemption based on public policy principles.

I

This case arises out of the actions of three groups of parties: the United States, the Oneida Indian Nation, and the counties of Oneida and Madison, New York ("Counties"). Prior to this case, the Oneidas had initiated two separate suits regarding New York land that previously belonged to them and that they sold between 1785 and 1846. The first suit ("Court of Claims suit") was filed against the United States in 1951. The Oneidas' theory in this suit was that unfair federal pressure and deceit in violation of the United States' fiduciary duty to the Oneidas rendered the United States liable to them for damages from the sale of these lands to New York. Interlocutory liability decisions against the United States issued in 1976 and 1978. Oneida Nation v. United States, 37 Ind.Cl.Comm. 522 (1976), aff'd, 576 F.2d 870 (Ct.Cl.1978); Oneida Nation v. United States, 43 Ind.Cl.Comm. 373 (1978). The damage portion of this suit is still pending in the U.S. Court of Claims.

The second Oneida suit ("district court suit") was filed against the Counties in federal district court in 1970. In this suit the Oneidas claimed that their lands had been improperly ceded to New York. They sought the fair rental value for and good title to these lands. In 1977 the district court ruled that the counties were liable to the Oneidas. Oneida Indian Nation v. County of Oneida, 434 F.Supp. 527 (N.D.N.Y.1977). The question of damages also remains to be litigated in this suit.

During the course of its appeal of the first Court of Claims suit liability decision, 576 F.2d 870 (Ct.Cl.1978), supra, the United States informed the Court of Claims in a January 1977 Appellant's Motion for Extension of Time that the United States and the Oneidas had engaged in a tentative settlement of the suit. This tentative settlement floundered, however, apparently due to the Oneidas' apprehension about its effect on their district court suit.

The Counties' attorney in the district court suit, van Gestel, learned of these negotiations and in March 1978 filed the FOIA disclosure request that lies at the heart of the present appeal van Gestel requested, pursuant to 5 U.S.C. § 552(a), that he be provided with all documents relating to this tentative Court of Claims case settlement. The United States Department of Justice replied to this request in May 1978 by stating that it had found in files 20 relevant documents totaling 50 pages. However, the Department released only portions of eight documents, totaling about four pages. It withheld the remainder under FOIA exemptions four ² and five, 5 U.S.C. § 552(b)(4) & (5). One month after van Gestel's administrative appeal was denied in October 1978, he as plaintiff together with the Counties filed a request for declaratory and injunctive relief under 5 U.S.C. § 552(a) in the District of Massachusetts. Both he and the United States moved for summary judgment.

The district court divided the requested documents into the following three categories:

"1. Documents relating to settlement offers and negotiation strategy within the Justice Department. Documents No. 1 through 6.

"2. Letters by and between attorneys for the Oneida nation and the Justice Department concerning the government's decision whether to represent the Oneida nation. Documents No. 7 through 9.

"3. Letters from the Justice Department to the Oneida attorneys discussing the settlement of (the Court of Claims case). Documents No. 10 through 20."

The district court ruled that the FOIA's exemption four did not apply to any of the documents. It held that exemption five did not protect documents 7-9, and that the Department of Justice was required to disclose these letters. Documents 1-6 it decided were protected by exemption five. Finally, although the remaining documents did "not fall precisely within the (fifth) exemption", the court nonetheless felt "that the public policy encouraging nonlitigious solutions of disputes ... and the necessary candor that such a process contemplates militates against disclosure of these records." ³

Both parties appealed the adverse portions of this disposition. The United States then appended additional disclosures to an appellate brief before us from nine of the twenty documents as part of its "policy to continually review and evaluate the contents of material withheld from information requesters...."

II

We will follow the district court's practice of dividing the requested documents into three categories. We begin with documents 10-20, the correspondence between the Oneidas' attorneys and the Justice Department proposing and discussing the settlement of the Court of Claims case.

A

The district court initially ruled that documents 10-20 did not qualify either for exemption four or five. Before us the government challenges only the second of these rulings.

Exemption five applies to documents (1) that are "inter-agency or intra-agency memorandums or letters", and (2) that "would not be available by law to a party other than an agency in litigation with the agency...." ⁴ 5 U.S.C. § 552(b)(5). Since the lawyers for the Oneida Indians are not government agencies or agents, the United States concedes before us that documents 10-18 and 20 are "not literally inter- or intra-agency letters...." ⁵ Nonetheless, it proposes that we rely on cases that protect communications from outside consultants that an agency calls upon to assist it in internal decisionmaking as precedent for reading exemption five broadly enough to encompass the instant case. See Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980); Wu v. National Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1352, 35 L.Ed.2d 586 (1973). It would have us focus not so much upon exemption five's "intra-agency" language as on the extent to which government settlement negotiations will be hampered if correspondence regarding such negotiations not found to be within the exemption.

We are sympathetic to the logic and force of this policy plea. The government engages in a prodigious amount of litigation, both as plaintiff and defendant. Negotiated settlement is the most efficient means to terminate such disputes. Knowledge that written settlement communications will be available to anyone, irrespective of the merit of his or her need to know, see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n. 10, 95 S.Ct. 1504, 1513 n.10, 44 L.Ed.2d 29 (1975), inevitably will to some extent impede this means.

Nonetheless the FOIA's legislative history "emphasize(d)" that the law "is not a withholding statute but a disclosure statute...." S.Rep. No. 1219, 88th Cong., 2d Sess. 11 (1954). See Chrysler Corp. v. Brown, 441 U.S. 281, 290 & n. 10, 99 S.Ct. 1705, 1712 & n. 10, 60 L.Ed.2d 208 (1979). The purpose of the legislation was to "eliminate" vague statutory phrases that agencies had previously used as "loopholes" for withholding information and "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language ...." S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965). Consequently courts have repeatedly stated that uncertainties in the FOIA's language are to be construed in favor of disclosure and that its exemptions are to be read narrowly. E. g., Vaughn v. Rosen, 484 F.2d 820, 823 & n. 11 (D.C.Cir.1973). Moreover, the government suggests no principled manner in which to confine FOIA's scope, should it persuade us to hurdle the limiting statutory language.

We therefore feel particularly constrained to require that sound policy arguments, however appealing, be grounded in a reading of statutory language that fairly reconciles rather than simply ignores the FOIA's phrasing. We perceive of no way, however, to describe the Oneidas' lawyers as "intra-agency" that is to say "within the Department of Justice" that does not simply omit the term "intra-agency" from the Act in pursuit of policy ends.

The Ryan and Wu cases are more defensible in this respect. Both go beyond the simplest measure of who is "within" an agency: the payroll. But in each case the agency contacted nonpayroll individuals to obtain information for the benefit of the agency. See also Hoover v. United States Department of the Interior, 611 F.2d 1132, 1138 (5th Cir. 1980); Brockway v. Department of Air Force, 518 F.2d 1184 (8th Cir. 1975); Washington Research Project, Inc. v. Department of Health, Education and Welfare, 504 F.2d 238, 249-52 (D.C.Cir.1974); Soucie v. David, 448 F.2d 1067, 1078 n. 44 (D.C.Cir.1971); Martin Marietta Aluminum, Inc. v. Administrator,...