Access Reports v. Department of Justice

• Decision Date: 01 March 1991
• Docket Number: No. 90-5044,90-5044
• Citation: 926 F.2d 1192
• Parties: , 59 USLW 2533, 18 Media L. Rep. 1840 ACCESS REPORTS v. DEPARTMENT OF JUSTICE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1192

926 F.2d 1192

288 U.S.App.D.C. 319, 59 USLW 2533,

18 Media L. Rep. 1840

ACCESS REPORTS v. DEPARTMENT OF JUSTICE, Appellant.

No. 90-5044.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 27, 1990.

Decided March 1, 1991.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 88-01433).

Nathan Dodell, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, Washington, D.C., for appellant.

Harry A. Hammitt of the bar of the Supreme Court of Virginia, pro hac vice, Catlett, Va., by special leave of the Court, with whom Eric Glitzenstein was on the brief, Washington, D.C., for appellee.

Before MIKVA, Chief Judge, and WILLIAMS and THOMAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

Once again this court is asked to define the scope of the "deliberative process" privilege contained in Exemption 5 of the Freedom of Information Act ("FOIA"). See 5 U.S.C. Sec. 552(b)(5) (1988). Access Reports, a biweekly newsletter that features information on FOIA, seeks a copy of a single internal memorandum written by a staff attorney at the Department of Justice. The memorandum, dated November 25, 1981, contains an analysis of amendments to FOIA proposed by the Department and introduced in the Senate in October 1981. Because the memorandum was prepared after the Department's decision to introduce the amendments, and because the Department could not "pinpoint" a later decision to which the document contributed, the district court held that the memorandum was not protected by Exemption 5. We reverse.

I

In 1981 the Department sought to persuade Congress to pass amendments to the Freedom of Information Act. At the request of the Reagan administration, Senator Orrin Hatch introduced an amending bill on October 20, 1981. See S. 1751, 97th Cong., 1st Sess. (1981), reprinted in Freedom of Information Act: Hearings Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 53 (1982); see also id. at 807 (statement of Sen. Hatch). After launching this initiative, Department officials became concerned about how to respond to critics claiming that the amendments would make FOIA too restrictive. Specifically, they were worried about a study by the Congressional Research Service ("CRS") ¹ that listed some 275-odd disclosures of information under FOIA found in news articles over a nine-year period. The critics argued that if the proposed amendments had been in effect, many of the listed articles could not have been written. Robinson Declaration p 3, Joint Appendix ("J.A.") at 306. In the expectation that legislative review of the Department's proposals would likely require some reaction to the CRS study, top officials of its Office of Legal Policy asked a newly hired staff attorney, Michael E. Robinson, to analyze the study "to determine whether the information discussed in those articles would have been subject to disclosure under the Department's proposed amendments." Robinson Declaration pp 3-4, J.A. at 306.

Robinson quickly prepared a 200-page memorandum that marched through the CRS study article-by-article, seeking to answer his superiors' question. See J.A. at 7 (redacted version). In his declaration later filed in the district court, he said that he believed he was creating an "internal working document" that would not be disclosed to the public, and that had he thought otherwise he would have been more cautious in his legal analysis and more hesitant to reach conclusions. Robinson Declaration p 6, J.A. at 307.

After learning of the memorandum, Access Reports filed a FOIA request with the Department for its release. The Department responded by releasing a redacted version, excluding all discussion of how the information noted in the CRS study would have fared under the proposed amendments, and leaving little more than a restatement of the facts reported by the CRS. Access Reports appealed the decision through administrative channels and, receiving no response, filed a complaint in district court. In an unpublished memorandum and order, the district court entered summary judgment for Access Reports and ordered the Department to release an unredacted copy. This appeal followed.

II

Exemption 5 excludes from FOIA's general disclosure requirements "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) (1988). This language covers intra-agency memoranda that would routinely be shielded from discovery in private litigation because of the government's "executive privilege", which protects the "deliberative or policymaking processes" of government agencies. See EPA v. Mink, 410 U.S. 73, 89, 93 S.Ct. 827, 837, 35 L.Ed.2d 119 (1973); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 & n. 16, 95 S.Ct. 1504, 1515 & n. 16, 44 L.Ed.2d 29 (1975). According to the legislative history of Exemption 5, the purpose of the privilege is to "encourage the 'frank discussion of legal and policy issues' " within the government. Wolfe v. HHS, 839 F.2d 768, 773 (D.C.Cir.1988) (en banc) (quoting S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965) U.S.Code Cong. & Admin.News 1966, 2418); see also Sears, 421 U.S. at 150, 95 S.Ct. at 1516. An agency invoking the exemption carries the burden of establishing its applicability. See Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C.Cir.1980); accord Senate of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574, 585 (D.C.Cir.1987).

The courts have said that an agency asserting the privilege must show that the document is both "predecisional" and "deliberative". See, e.g., Wolfe, 839 F.2d at 774; Coastal States, 617 F.2d at 866. Plaintiff here has framed its argument mainly as a claim that the memo is not predecisional. It characterizes the memo as a document "that was prepared expressly to support a decision that had already been made". Brief for Appellee at 13. Access Reports also argues that it cannot be predecisional because the Department has failed to "pinpoint" any later decision. The argument by characterization misses the mark, and the Department's failure to "pinpoint" a later decision is not fatal to its claim of privilege.

As deliberation typically looks toward a future decision, an independent requirement that a document be predecisional may seem redundant. When would a deliberative document not also be predecisional? But an agency's contemporaneous or after-the-fact explanation of a decision will often be "deliberative" as the word is used in common parlance, in that it carefully weighs the arguments for and against various outcomes before announcing a winner. Because the courts have determined that Congress did not intend to exempt such explanatory documents from FOIA's disclosure requirements, they have denied the privilege in these circumstances by finding that the documents are not "predecisional".

The Supreme Court took this approach in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-52, 95 S.Ct. 1504, 1516-17, 44 L.Ed.2d 29 (1975), noting that although Congress clearly believed that disclosure of predecisional communications would inhibit them and adversely affect the quality of agency decisions, it was "difficult to see how the quality of a decision will be affected by communications with respect to the decision occurring after the decision is finally reached." Id. at 151, 95 S.Ct. at 1516. Relying in part on FOIA's affirmative requirement that agencies disclose "final opinions", see 5 U.S.C. Sec. 552(a)(2) (1988), the Court reasoned that while the public is only marginally interested in arguments that were rejected or that might have been invoked in favor of a decision, it had a vital interest in discovering "the basis for an agency policy actually adopted. These reasons, if expressed within the agency, constitute the 'working law' of the agency...." 421 U.S. at 152-53, 95 S.Ct. at 1517; see also Coastal States, 617 F.2d at 867 ("[a] strong theme of our opinions has been that an agency will not be permitted to develop a body of 'secret law' "). The "predecisional" requirement helps to identify such documents and to exclude them from Exemption 5.

In fact, the word "deliberative" as used in the law of Exemption 5 is considerably narrower than the colloquial meaning; as a consequence, the "deliberative" and "predecisional" requirements tend to merge. Both terms have come to apply only to documents that contribute to an ongoing deliberative process within an agency. For instance, in Coastal States we said that a document is deliberative if it "reflects the give-and-take of the consultative process", 617 F.2d at 866, while in Taxation with Representation Fund v. IRS we observed that "[p]redecisional documents are thought generally to reflect the agency 'give-and-take' leading up to a decision that is characteristic of the deliberative process," 646 F.2d 666, 677 (D.C.Cir.1981) (emphasis in original). In Senate of Puerto Rico, we told the agency that it "must establish 'what deliberative process is involved, and the role played by the documents in issue in the course of that process' " to fulfill the deliberative requirement, but we were quoting a portion of the Coastal States opinion discussing the predecisional label. Senate of Puerto Rico, 823 F.2d at 585-86 (quoting Coastal States, 617 F.2d at 868).

A key feature under both the "predecisional" and "deliberative" criteria is the relation between the author and recipients of the document. A document from a junior to a senior is likely to reflect his or her own subjective opinions and will clearly have no binding effect on the recipient. By contrast, one moving from senior to junior is far more likely to manifest decisionmaking...