Montrose Chemical Corporation of California v. Train

• Citation: 491 F.2d 63
• Decision Date: 21 January 1974
• Docket Number: No. 73-1443,73-1444.,73-1443
• Parties: MONTROSE CHEMICAL CORPORATION OF CALIFORNIA, Appellant, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Appellee. MONTROSE CHEMICAL CORPORATION OF CALIFORNIA, Appellee, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

491 F.2d 63 (1974)

MONTROSE CHEMICAL CORPORATION OF CALIFORNIA, Appellant, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Appellee.

MONTROSE CHEMICAL CORPORATION OF CALIFORNIA, Appellee, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Appellant.

Nos. 73-1443, 73-1444.

United States Court of Appeals, District of Columbia Circuit.

Argued November 5, 1973.

Decided January 21, 1974.

Robert L. Ackerly, Washington, D. C., with whom Charles A. O'Connor, III, Washington, D. C., was on the brief, for appellant in No. 73-1443 and appellee in No. 73-1444.

Stephen F. Eilperin, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U. S. Atty., and Walter H. Fleischer, Atty., Dept. of Justice were on the brief for appellant in No. 73-1444 and appellee in No. 73-1443.

John A. Terry and Robert S. Rankin, Jr., Asst. U. S. Attys., also entered appearances for appellant in No. 73-1444 and appellee in No. 73-1443.

Before TAMM, ROBINSON and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

In an action brought under the Freedom of Information Act FOIA¹ Montrose Chemical Corporation is seeking to obtain two summaries of evidence developed at a hearing. The Administrator of the Environmental Protection Agency EPA, the official for whom the summaries were prepared, then William Ruckelshaus, contends that the summaries are exempt from disclosure under the intra-agency memoranda exception of FOIA. Exemption 5 frees from the 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."²

After in camera inspection of the documents the District Court granted Montrose summary judgment, but deleted certain portions of one document without explanation. On cross-appeals from the District Court order we reverse the decision below, and hold that both summaries are within the intra-agency memoranda exemption and hence not subject to forced disclosure.

I. THE FACTUAL BACKGROUND

The two documents at issue here were prepared by staff of the EPA to summarize evidence adduced at EPA hearings on DDT, held pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act FIFRA.³ The Consolidated DDT Proceedings, begun in August 1971 and concluded in March 1972, compiled a record of over 9200 pages. The Hearing Examiner⁴ entered findings and conclusions that all DDT registrations were in compliance with FIFRA.

EPA regulations provide that the Judicial Officer review the record of the proceedings and render the final decision.⁵ However, in view of the importance of the case, the Administrator withdrew from the Judicial Officer this delegation of authority⁶ and himself, along with the Judicial Officer and two high level EPA attorneys, heard oral argument on 16 May 1972. In an order dated 2 June and issued 14 June 1972, Ruckelshaus directed the cancellation of the DDT registrations, thus reversing the Hearing Examiner.

In the course of his consideration of the case, Ruckelshaus sought the assistance of his staff. Specifically, he requested the three EPA attorneys who were to hear the oral argument with him, and who had not been connected with the EPA position at the hearings, to review the record made at the hearings, and to direct the preparation of analyses of the evidence.⁷ Two documents which were prepared by the staff are at issue here: one entitled "Analysis of Risks Attributed to DDT," and the other "Summary and Analysis of Evidence of Benefits." These documents were to be used only to assist Ruckelshaus in his study of the record,⁸ and were based wholly on evidence in the record of the hearings.⁹

While Montrose contends that the summaries are factual and should be disclosed since a decision should be based on a public record, the EPA contends that the summaries are intra-agency memoranda, prepared as part of the deliberative process, exempt from disclosure under exemption 5. The EPA argues that the summaries contain no facts not already in the public record, and should remain confidential because of the need for full and free exchange of ideas in the decision-making process.

The District Court holding and rationale were put succinctly: "After consideration of the documents in camera, the Court finds that all or part of the documents constitute summaries of testimony, summaries of the record, conclusions of witnesses and other factual information and are not exempt from disclosure as intra-agency memoranda."¹⁰ Without explanation, the District Court exempted from disclosure certain identified portions of one document.¹¹ The District Court stayed its order pending this appeal.

II. ANALYSIS OF EXEMPTION 5

The issue before the court, whether a staff-prepared summary of factual evidence on the record is within exemption 5 of FOIA, has not been adjudicated previously. However, exemption 5 itself has received careful attention by the Supreme Court, this court, and other federal courts. We first review the seminal case, Environmental Protection Agency v. Mink,¹² and other exemption 5 cases, and then we apply the law to the documents at issue here.

Exemption 5 must, of course, be interpreted in the context of the Freedom of Information Act as a whole. The broad goal of FOIA was to make available to the public a wide range of information in the Government's control.¹³ Notwithstanding the general goal of disclosure, it was recognized that something less than 100% disclosure of all government operations was only practical and reasonable. Hence Congress attempted to establish standards for the necessary departure from the general rule of disclosure by creating nine explicit exemptions.¹⁴ These exemptions are exclusive,¹⁵ and are to be interpreted narrowly.¹⁶

In Environmental Protection Agency v. Mink, the Supreme Court considered the legislative history of exemption 5 and concluded that "Congress intended to incorporate generally the recognized rule that `confidential intra-agency advisory opinions . . . are privileged from inspection.'"¹⁷ To protect the deliberative or policy-making processes of government, such an exemption was necessary. It was feared that, if internal agency discussions and memoranda were publicized, the Government would be forced to "operate in a fishbowl,"¹⁸ thus inevitably inhibiting frank discussion essential to the development of carefully formulated, coherent agency policy.¹⁹

Some limitations were essential in interpreting exemption 5 to prevent the exception from engulfing the rule. One such limitation adopted by the Mink Court, was the dichotomy between factual and deliberative matters. When an intra-agency memorandum consisted of purely factual material, or such factual portions were easily severable from the deliberative portions, disclosure would be required.²⁰ Such an interpretation, it was thought, would not be "injurious to the consultative functions of government that the privilege of nondisclosure protects,"²¹ and would be also consonant with the intent of Congress.

This distinction drawn in Mink between factual and deliberative material was earlier suggested by this court in Soucie v. David.²² In a passage which anticipates the current controversy, Chief Judge Bazelon wrote for the court that exemption 5

was intended to encourage the free exchange of ideas during the process of deliberation and policy-making; accordingly, it has been held to protect internal communications consisting of advice, recommendations, opinions, and other material reflecting deliberative or policy-making processes, but not purely factual or investigatory reports. Factual information may be protected only if it is inextricably intertwined with policy-making processes. Thus, for example, the exemption might include a factual report prepared in response to specific questions of an executive officer, because its disclosure would expose his deliberative processes to undue public scrutiny. But courts must beware of "the inevitable temptation of a governmental litigant to give this exemption an expansive interpretation in relation to the particular records in issue."²³

This distinction was not decisive in Soucie, because the District Court had mistakenly thought FOIA inapplicable to the governmental body involved, and a remand was necessary to develop an appropriate record.²⁴ We did this accompanied by the statement that, on the basis of the record at the time, there was no reason to believe that disclosure of the factual information in the reports there involved would unduly expose the decisional process.²⁵

Other cases in this Circuit have also recognized a distinction between purely factual and deliberative reports. Thus, for example, in Bristol Myers Co. v. FTC, we noted that

Purely factual reports and scientific studies cannot be cloaked in secrecy by an exemption designed to protect only "those internal working papers in which opinions are expressed and policies formulated and recommended."²⁶

In none of these cases, however, was the distinction fully elaborated.²⁷

III. THE FACTUAL/DELIBERATIVE TEST IN LIGHT OF THE PRESENT CASE

In the case at bar this factual versus deliberative distinction is inadequate to resolve the difficult question whether the factual summaries should be exempt from disclosure. The difficulty arises because of the nature of the documents. It is agreed that the summaries in question are in large part compilations of facts introduced in evidence at the hearings, and on the public record.²⁸ Montrose contends that such factual materials must be disclosed under the prior decisions discussed above. In contrast, EPA contends that the mere compilation of a summary of the evidence on record, performed by staff members for the use of the Administrator in formulating his decision and final order, is itself a part of the internal deliberative process which should be kept confidential and within the agency. What will be disclosed here if the District...