Russell v. Department of the Air Force, 81-2005

Citation682 F.2d 1045
Decision Date23 July 1982
Docket NumberNo. 81-2005,81-2005
Parties, 8 Media L. Rep. 2134 Elizabeth G. RUSSELL, et al., Appellants, v. DEPARTMENT OF THE AIR FORCE.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-2426).

Peter V. Berns, Washington, D. C., with whom Laura Macklin and Lewis Milford, Washington, D. C., were on the brief, for appellants.

Scott T. Kragie, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. at the time the brief was filed, Royce C. Lamberth, Kenneth M. Raisler and Michael J. Ryan, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before ROBB and BORK, Circuit Judges, and GORDON, * Senior District Judge for the Western District of Kentucky.

Opinion for the Court filed by Senior District Judge JAMES F. GORDON.

JAMES F. GORDON, Senior District Judge:

This appeal concerns Exemption (b)(5) of the Freedom of Information Act (hereinafter, FOIA), 5 U.S.C. § 552(b)(5). Appellants, Elizabeth B. Russell and the National Veteran Task Force on Agent Orange, brought this action under the FOIA to force Appellee, Department of the Air Force, to disclose portions of a draft Air Force historical document entitled "Operation Ranchhand: The United States Air Force and Herbicides in Southeast Asia, 1961-1971." Appellants appeal from the District Court's award of summary judgment to the Air Force, which held that the portions of the draft document withheld are within Exemption (b)(5). We affirm.

The Appellant's cause of action focuses on an official Air Force interpretive history on the use of Agent Orange and other herbicides in the Vietnam War. The Air Force has submitted the final manuscript of this history to the Government Printing Office for publication, and has already disclosed the entire final manuscript to the Appellants. The Appellants, however, seek portions of a preliminary draft of the history. This draft manuscript contains 1,168 pages. The Air Force has disclosed to the Appellants all but about twenty pages, which were not included in the final manuscript. Through this action, Appellants seek to obtain the twenty pages withheld.

Appellant Russell is a college student. At the time she requested the "Ranchhand" material, she was preparing an honors thesis that addressed the use of herbicides in the Vietnam War. Appellant National Veterans Task Force on Agent Orange (hereinafter, Task Force), on the other hand, is a national organization established to advance the interest of veterans who were exposed to the herbicide Agent Orange while serving in Vietnam. In its brief, the Task Force states that it "seeks to disseminate information and influence government policy concerning the health hazards and consequences of herbicide use". In order to accomplish its purposes, the Task Force, among other things, testifies before Congress, files litigation, and distributes information via the mass media.

The material sought by Appellants is the product of an interpretive, historical study conducted by the Office of Air Force History (hereinafter, OAFH). According to the Chief of OAFH, such studies are "designed to do more than preserve history." "The primary considerations are that the products have utility for direct mission support purposes and serves as guides for Air Force action, that they be of current and future value to the Air Force in planning and decision making, and that they be a source of essential and accurate information."

In order to produce works that fulfill the above purposes, OAFH maintains a complex system of editorial review. Once the OAFH assigns an individual officer to write a history, the officer begins work on an initial draft from his research of primary sources of information. As the work progresses, each chapter is reviewed by a panel of other OAFH historians and critiqued by the senior officer supervising the project. The panel submits oral and written comments to the "author" concerning both the substance and style of the material in the draft. If appropriate, these comments are incorporated in the draft chapter.

Once a total draft manuscript is completed, senior OAFH officers review the proposed history. The manuscript is then circulated among various agencies within the Air Force which have knowledge concerning the subject of the history. These agencies review the accuracy and security status of the material in the manuscript. After the relevant agencies have evaluated the draft, the "author" makes whatever changes are shown necessary by this review. Once this process is complete, the manuscript is forwarded to the Secretary of the Air Force, Public Affairs (hereinafter, Public Affairs). Public Affairs subjects the manuscript to a security classification and policy review to determine the appropriateness on the history for open publication. In making this evaluation, Public Affairs may work with the Defense Department, the State Department, or the Central Intelligence Agency. If Public Affairs approves the contents of the history, the manuscript returns to the OAFH for final editorial review and final approval by the Chief of OAFH. If the Chief approves the final manuscript for publication, it is sent to the Government Printing Office.

As noted above, the Air Force has already disclosed to the Appellants the final manuscript of the "Ranchhand" history. If Appellants' suit sought disclosure of this official Air Force statement of historical facts a different case would be before us. See, Playboy Enterprises, Inc. v. Department of Justice, et al., 677 F.2d 931 (D.C.Cir.1982). Since, however, Appellants seek to probe behind the official Air Force history to obtain a preliminary draft of the official document, we believe disclosure would reveal the Air Force's deliberative process in creating the "Ranchhand" history. Accordingly, the District Court correctly found that Exemption (b)(5) exempts the portions of the draft manuscript withheld from mandatory disclosure under the FOIA.

Exemption (b)(5) shields from the mandatory disclosure requirements of the FOIA the deliberative process that precedes most decisions of government agencies. Jordan v. United States Dept. of Justice 591 F.2d 753, 773 (D.C.Cir.1978). Thus, the exemption protects not only communications which are themselves deliberative in nature, but all communications which, if revealed, would expose to public view the deliberative process of an agency. Montrose Chemical Corp. of California v. Train, 491 F.2d 63 (D.C. Cir. 1974). For example, agency communications containing purely factual material are generally not protected by Exemption (b)(5). EPA v. Mink, 410 U.S. 73, 90-1, 93 S.Ct. 827, 837, 35 L.Ed.2d 119 (1972). Where, however, disclosure of even purely factual material would reveal an agency's decision-making process Exemption (b) (5) applies. Mead Data Central, Inc. v. U. S. Department of the Air Force, 566 F.2d 242, 256 (D.C.Cir.1977). In Jordan, Judge Wilkey articulates well the policies behind Exemption (b)(5)'s protection of the deliberative process. He states:

There are essentially three policy bases for this privilege. First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that "officials should be judged by what they decided(,) not for matters they considered before making up their minds."

591 F.2d at 772-3 (footnotes omitted). When we consider the facts of this case in...

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