702 F.2d 233 (D.C. Cir. 1983), 82-1635, Schlefer v. United States

Docket Nº:82-1635.
Citation:702 F.2d 233
Party Name:Mark P. SCHLEFER, Appellant, v. UNITED STATES of America, et al.
Case Date:March 01, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 233

702 F.2d 233 (D.C. Cir. 1983)

Mark P. SCHLEFER, Appellant,


UNITED STATES of America, et al.

No. 82-1635.

United States Court of Appeals, District of Columbia Circuit

March 1, 1983

Argued Jan. 11, 1983.

As Amended .

Page 234

[Copyrighted Material Omitted]

Page 235

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-02551).

Mark P. Schlefer, pro se. Vicki J. Shteir and Donald M. Squires, Washington, D.C., were on brief for appellant.

David H. Enzel, Sp. Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, and John D. Bates, Asst. U.S. Attys., Washington, D.C., were on brief for appellees.

Before ROBINSON, Chief Judge, MacKINNON and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

The Office of the Chief Counsel of the Maritime Administration maintains summary-indexes of significant written opinions prepared by the Chief Counsel 1 in response to intra-agency requests for legal advice. Many of the indexed "Chief Counsel Opinions" ("CCOs") interpret statutes relevant to the Agency's dealings with the public; others address questions of Agency policy, or deal with internal Agency activities. Invoking the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, plaintiff-appellant Schlefer seeks release of index digests of CCOs that interpret provisions of three statutes assigning prime responsibilities to the Agency: the 1916 Shipping Act, and the 1920 and 1936 Merchant Marine Acts, as amended. The Agency describes these documents as deliberative, predecisional, and within the scope of the attorney-client privilege; it therefore claims that the indexes are shielded by FOIA Exemption 5. In large part, the district court upheld the Exemption 5 plea. For the reasons set forth below, we hold that the Agency has failed to demonstrate that Exemption 5 covers the CCO summary-indexes in question. Accordingly, we reverse the district court's judgment and remand the case with instructions to order disclosure of the requested documents.


A. Description of the Documents

Maritime Administration officials, ruling on requests for loans or subsidies, the use of reserve funds maintained by shippers pursuant to the Marine Acts, and similar matters presented to the Agency by outsiders,

Page 236

may request legal advice from the Chief Counsel. 2 Advice is given in the form of legal memoranda from the Chief Counsel to the "requesting official." A small fraction of these memoranda, considered "important" or "significant," or addressing issues likely to recur, are designated "CCOs" by the Chief Counsel. Joint Appendix (J.A.) 26. Examples of CCOs, accepted by the Agency as "typical of all CCOs," J.A. 29, are set out in the Joint Appendix at 5-13.

Each CCO is transmitted to the requesting official and circulated among the attorneys in the Office of the Chief Counsel, and a copy is bound into the current volume of CCOs maintained by that Office. The Office of the Chief Counsel staff also summarizes the facts and holding of the CCO on one or more index cards, and files these under appropriate headings. J.A. 26-28. Examples of the summary-index cards that Schlefer would have the Agency disclose appear in the Joint Appendix at 43-45. 3 There is no other distribution of CCOs or summary indexes within the Agency, but requesting officers are free to discuss their contents with other Agency officials. J.A. 59.

Though final Agency decisions and public statements are, of course, communicated to affected parties outside the Agency, CCOs themselves generally are not released to the public. 4 A published decision occasionally will refer to the CCO on which it relies, but the text of the CCO is disclosed only in the rare instance when it is explicitly incorporated in the published decision.

B. The District Court's Decision

The district court held, on cross-motions for summary judgment, 5 that CCOs (and therefore the CCO summaries Schlefer requested) are part of the predecisional, deliberative Agency process, flowing from "advisor" to "decisionmaker," and prepared before the Agency arrives at its final decision. J.A. 90. 6 The court read the record to show that "[a]gency officials ty[p]ically follow the advice contained in a CCO, but this is not required.... If an official disagrees with a CCO, he may ignore it or may present the Chief Counsel with his reasons for disagreeing with the opinion. The Chief Counsel then may or may not change his opinion." J.A. 87-88. Largely because CCOs are not designated as formally binding on the officials who seek the Chief Counsel's legal advice, the district court ordered the Agency to disclose only those summary-indexes of CCOs that the Agency has "relied upon" in making final decisions. J.A. 93.

The district court further held that the attorney-client privilege does not apply to CCOs "relied upon" by the Agency, J.A. 92, but did not indicate whether the privilege provides an independent basis for protecting other CCOs from disclosure.

C. Statutory Background

Schlefer contends that CCOs are part of the working Agency law, and fall squarely within the language of 5 U.S.C. Sec. 552(a)(2).

Page 237

That section of FOIA requires disclosure of "statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and ... administrative staff manuals and instructions to staff that affect a member of the public ...."

The Agency relies on FOIA Exemption 5, which provides that disclosure requirements do 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. Sec. 552(b)(5). Exemption 5 encompasses "the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context," Taxation With Representation Fund v. IRS, 646 F.2d 666, 676 (D.C.Cir.1981). It extends to materials used as part of the "deliberative process," Federal Open Market Committee v. Merrill, 443 U.S. 340, 353, 99 S.Ct. 2800, 2802, 61 L.Ed.2d 587 (1979); EPA v. Mink, 410 U.S. 73, 86-87, 93 S.Ct. 827, 835-836, 35 L.Ed.2d 119 (1973); Russel v. Department of the Air Force, 682 F.2d 1045, 1047-48 (D.C.Cir.1982), and materials that ordinarily would be protected by the attorney-client privilege. Coastal States Gas Corp. v. DOE, 617 F.2d 854, 862-64 (D.C.Cir.1980); Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 252-55 (D.C.Cir.1977).

The Agency bears the burden of demonstrating that CCOs are predecisional and deliberative, or that they fall within the attorney-client privilege. 5 U.S.C. Sec. 552(a)(4)(B); Vaughn v. Rosen, 523 F.2d 1136, 1144, 1146 (D.C.Cir.1975). Both privileges are to be construed narrowly. Coastal States, supra, 516 F.2d at 862, 868.


The reasons for shielding "deliberative" agency documents from disclosure were explained in Coastal States, supra, as follows:

The privilege has a number of purposes: it serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.

617 F.2d at 866 (citation omitted).

The disclosure of documents that authoritatively state an agency's position will neither inhibit the free exchange of views within the agency nor confuse the public, because the agency's own purpose in preparing such documents is to obviate the need for further intra-agency deliberation on the matters addressed. But the line between "authoritative" and "deliberative" agency documents, if readily described in abstraction, is often blurred in concrete cases. Courts have used several indicators to gauge which internal agency documents embody agency "law" that must be disclosed, and which represent intra-agency "deliberation" that may be withheld. Two testing questions largely embrace these indicators: first, do the documents serve as "law" in the specific case to which they are addressed; second, do they serve as "law"-like precedent in subsequent cases.

A. The Authority of a CCO in the Case it Addresses

The CCOs to which Schlefer seeks access--those interpreting provisions of the 1916 Shipping Act, and the 1920 and 1936 Merchant Marine Acts--are written and received in circumstances that establish them as definitive rulings on the legal questions they decide. First, a close and complete look at hierarchical relations within the Agency reveals that the Chief Counsel has authority effectively to give the legal advice furnished in CCOs the force of internal Agency law. Second, in practice, requesting officials always follow the advice given.

Page 238

Intra-agency memoranda from "subordinate" to "superior" on an agency ladder are likely to be more "deliberative" in character than documents emanating from superior to subordinate. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 155, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184-85 & n. 22, 95 S.Ct. 1491, 1500-01 & n. 22, 44 L.Ed.2d 57 (1975); Arthur Andersen & Co. v. IRS, 679 F.2d 254, 259 (D.C.Cir.1982); Brinton v. Department of...

To continue reading