Judicial Watch, Inc. v. Department of Energy

• Decision Date: 17 June 2005
• Docket Number: No. 04-5206.,No. 04-5205.,No. 04-5204.,04-5204.,04-5205.,04-5206.
• Citation: 412 F.3d 125
• Parties: JUDICIAL WATCH, INC., Appellee v. DEPARTMENT OF ENERGY, et al., Appellants
• Court: U.S. Court of Appeals — District of Columbia Circuit

412 F.3d 125

JUDICIAL WATCH, INC., Appellee v. DEPARTMENT OF ENERGY, et al., Appellants

No. 04-5204.

No. 04-5205.

No. 04-5206.

United States Court of Appeals, District of Columbia Circuit.

Argued April 19, 2005.

Decided June 17, 2005.

Appeals from the United States District Court for the District of Columbia (No. 01cv00981) (No. 01cv02545) (No. 02cv01330).

Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, Gregory G. Katsas, Deputy Assistant Attorney General, and Michael S. Raab, Douglas Hallward-Driemeier, and Lewis S. Yelin, Attorneys.

Sharon Buccino and James F. Peterson argued the cause for appellees. With them on the brief were Jon Devine, Howard M. Crystal, Eric R. Glitzenstein, and Paul J. Orfanedes.

Before: GINSBURG, Chief Judge, and TATEL and GARLAND, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge.

Eight federal agencies appeal from an order of the district court requiring them to search their records for, and to give the plaintiffs, certain documents related to the National Energy Policy Development Group (NEPDG). The district court rejected the agencies' claim that the documents come within Exemption 5 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(5), because they reflect the pre-decisional deliberations of the NEPDG. The district court also ordered each agency to search for and to disclose certain records created or maintained by agency employees who were paid by the agency while they were working for the NEPDG or another related task force.

We hold that, although the NEPDG was not itself an "agency" for purposes of the FOIA, the agencies lawfully withheld, pursuant to Exemption 5, documents bearing upon the deliberative processes of the NEPDG. We also hold that the records created or obtained by employees detailed from an agency to the NEPDG are not "agency records" subject to disclosure under the FOIA.

I. Background

In 2001 Judicial Watch and the Natural Resources Defense Council, between them, sued the United States Departments of Agriculture, Commerce, Energy, the Interior, Transportation, and the Treasury, the Environmental Protection Agency, the Federal Emergency Management Agency, and the Office of Management and Budget (since dismissed), alleging the defendant agencies violated the disclosure requirements of the FOIA by withholding agency records related to the NEPDG, which President George W. Bush had established earlier that year for the purpose of developing a "national energy policy designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future." Mem. Establishing the NEPDG, Jan. 29, 2001. The plaintiffs sought a declaration that the agencies' failure to disclose the requested documents was unlawful and an order requiring them to make the documents available.

In its cross-motion for summary judgment, the Government argued the documents in question were protected from disclosure under Exemption 5 because they reflected the deliberations of the NEPDG. The district court rejected that argument and ordered the Government to release the requested documents by June 1, 2004 "unless the agenc[ies] can demonstrate how each communication is both deliberative and predecisional of an agency's own decision." Judicial Watch, Inc. v. Department of Energy, 310 F.Supp.2d 271, 316 (2004). The court also ruled that the DOE and the DOI had failed adequately to search their records because they did not consider in their search any documents created by or maintained by agency employees while detailed to the NEPDG (or, with respect to one employee, while he was serving as his agency's representative on another energy-related task force). Id. at 298-302. The court directed each Department to conduct a new search and to disclose any non-exempt documents responsive to the plaintiffs' requests. Id. at 331. Upon the motion of the Government, the district court later stayed its order pending the outcome of this appeal.

II. Analysis

We review the district court's decision on summary judgment de novo, which in a FOIA case means we must "ascertain whether the agency has sustained its burden of demonstrating that the documents requested are not `agency records' or are exempt from disclosure." Assassination Archives and Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003). In this case, the specific questions to be resolved are (1) whether Exemption 5 permits the defendant agencies to withhold documents pertaining not to their own deliberations but to those of the NEPDG, and (2) whether the records of agency employees who were detailed to the NEPDG are "agency records" subject to disclosure under the FOIA. Before turning to these issues, however, the court must address Judicial Watch's motion to dismiss this appeal on the ground that the district court has not issued a final order. See 28 U.S.C. § 1291.

Judicial Watch contends the order of the district court is not final because it does not actually require the agencies to disclose any records; they are required only to conduct a fresh review of their records and to raise such other objections, if any, as they may then have. As the Government reads the order, on the other hand, the agencies are required immediately (upon dissolution of the stay pending appeal) to disclose certain documents with respect to which the Government has no argument against disclosure apart from the Exemption 5 argument already rejected by the district court; therefore, the order is reviewable either as a final order, pursuant to 28 U.S.C. § 1291, or as an interlocutory injunctive order, pursuant 28 U.S.C. § 1292(a)(1).

In our view the order of the district court is not "final" because it does not fully resolve all the issues before that court, see Southeastern Fed. Power Customers v. Harvey, 400 F.3d 1, 4 (D.C.Cir.2005), but it is an appealable interlocutory order insofar as it requires the disclosure of documents for which the agencies claim no basis for non-disclosure beyond the argument already rejected by the district court. That the agencies also must conduct a new search does not mean they may defer disclosure of the documents they have already located. The order is therefore injunctive in nature and, as such, appealable under § 1292(a)(1). See Gulf Oil Co. v. Dep't of Energy, 663 F.2d 296, 306 n. 70 (D.C.Cir.1981) ("Mandatory orders affecting preliminary agency action have generally been held to be appealable as injunctions under § 1292(a)(1)"); see also Miller v. Bell, 661 F.2d 623, 625 (7th Cir.1981) ("A disclosure order in a FOIA suit is injunctive in nature"). We therefore deny the motion to dismiss this appeal and proceed to the merits.

A. Exemption 5 and the Deliberative Process Privilege

The FOIA requires an "agency" to make "agency records" available upon request unless it can show they come within one of the nine exemptions in the Act, see 5 U.S.C. § 552(a)(3), (b); Kowalczyk v. Dep't of Justice, 73 F.3d 386, 388 (D.C.Cir. 1996), which, in furtherance of the Congress's goal of open government, "have been consistently given a narrow compass." Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). The only Exemption at issue here is No. 5, which authorizes the non-disclosure of "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than another agency in litigation with the agency." That means the Government may withhold a document if: (1) "its source [is] a Government agency," and (2) "it [falls] within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001).

One of the privileges incorporated into Exemption 5 is the common-law "privilege regarding the government's deliberative process." Bureau of Nat'l Affairs v. Dep't of Justice, 742 F.2d 1484, 1496 (D.C.Cir.1984). Its inclusion in the statute "reflect[s] the legislative judgment that the quality of administrative decision-making would be seriously undermined if agencies were forced to `operate in a fishbowl' because the full and frank exchange of ideas on legal or policy matters would be impossible." Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C.Cir.1997). To come within the purpose of the privilege, therefore, a document must be both "pre-decisional" and "deliberative," see In re Sealed Case, 121 F.3d 729, 737 (D.C.Cir.1997); and, by the terms of Exemption 5, it must also be an "inter-agency" or an "intra-agency" record. See Klamath Water Users, 532 U.S. at 9, 121 S.Ct. 1060.

In this case the Government argues Exemption 5 and the deliberative process privilege authorize the agencies to withhold documents that would reveal the decision-making processes of the NEPDG. The district court rejected that argument, reasoning that because the NEPDG is not itself an "agency" within the meaning of the FOIA, see 5 U.S.C. § 552(f)(I), Exemption 5 does not protect its deliberations from disclosure. In the district court's view, then, the privilege would apply if the NEPDG were informing the agencies' decision-making processes, but not if the agencies were informing the decision-making processes of the NEPDG, as was in fact the case. See 310 F.Supp.2d at 314-16.

We agree the NEPDG is not itself an "agency" subject to the FOIA because its sole function is to advise and assist the President. See Meyer v. Bush, 981 F.2d 1288, 1292 (D.C.Cir.1993). The district court erred, however, in thinking that Exemption 5 therefore does not protect the deliberations of the NEPDG. Neither Exemption 5 nor the cases interpreting it distinguish...