National Inst. of Mil Just. v. U.S. Dept. of Def.

• Decision Date: 11 January 2008
• Docket Number: No. 06-5242.,06-5242.
• Citation: 512 F.3d 677
• Parties: NATIONAL INSTITUTE OF MILITARY JUSTICE, Appellant v. UNITED STATES DEPARTMENT OF DEFENSE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

512 F.3d 677

NATIONAL INSTITUTE OF MILITARY JUSTICE, Appellant v. UNITED STATES DEPARTMENT OF DEFENSE, Appellee.

No. 06-5242.

United States Court of Appeals, District of Columbia Circuit.

Argued November 5, 2007.

Decided January 11, 2008.

Appeal from the United States District Court for the District of Columbia (No. 04cv00312).

Rajesh De argued the cause for the appellant. Andrew J. Pincus was on brief. Mark H. Lynch entered an appearance.

Michael L. Waldman was on brief for amicus curiae The Constitution Project in support of the appellant.

Claire M. Whitaker, Assistant United States Attorney, argued the cause for the appellee. Jeffrey A. Taylor, United States Attorney, Michael J. Ryan, Assistant United States Attorney, and Karen L. Hecker, Senior Attorney, and Stewart F. Aly, Attorney, United States Department of Defense, were on brief. R. Craig Lawrence, Assistant United States Attorney, entered an appearance.

Before: HENDERSON and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge TATEL.

KAREN LECRAFT HENDERSON, Circuit Judge:

The National Institute of Military Justice (NIMJ) filed this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking, inter alia, nineteen records containing the opinions and recommendations of non-governmental lawyers whose advice the United States Department of Defense (DoD) solicited to promulgate regulations establishing terrorist trial commissions. The district court granted summary judgment in DoD's favor, concluding that the documents are exempt from disclosure under FOIA Exemption 5, id. § 552(b)(5). See Nat'l Inst. of Military Justice v. U.S. Dep't of Defense, 404 F.Supp.2d 325, 342-47 (D.D.C.2005). We agree that the documents are protected by FOIA Exemption 5 and therefore affirm the judgment of the district court.

I.

On November 13, 2001 President George W. Bush issued a Military Order to establish military commissions to try terrorists. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed.Reg. 57,833 (Nov. 13, 2001). The Military Order stated that any person subject to it—i.e., any non-citizen who the President determines there is reason to believe has been a member of al Qaeda, has engaged in acts of international terrorism against the United States or has knowingly harbored such persons—"shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed." Id. at 57,834. The Military Order further directed that the Secretary of Defense "shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out" the trials. Id.¹

In the course of promulgating regulations,² DoD solicited and received comments from a number of non-governmental lawyers, who were former high ranking governmental officials or academics or both. According to DoD, it

sought the opinions and recommendations of these outside consultants because their previous experience in the government and/or their expertise made them uniquely qualified to provide advice to the General Counsel's office on the Military Commissions procedures. Each was asked to provide their comments on the proposed Military Commission procedures.

Decl. of Christine S. Ricci, DoD Assoc. Dep. Gen. Counsel, (Ricci Decl.) 10 (Mar. 9, 2005). Although the consultants were "not paid for their services," there was "an understanding that they w[ouldl consult and advise on a continuing basis." Decl. of Karen L. Hecker, Assoc. Dep. Gen. Counsel, Office of Gen. Counsel, DoD, (Hecker Decl.) 2 (July 18, 2005). There was also "an understanding that the contents of the consultations would not be released publicly." Decl. of Paul W. Cobb, Jr., former Dep. Gen. Counsel, Office of Gen. Counsel, DoD, (Cobb Decl.) 3 (Feb. 16, 2005).³

On October 3, 2003, NIMJ submitted a FOIA request to DoD seeking

all written or electronic communications that the Department (including the Secretary and General Counsel) has either sent to or received from anyone (other than an officer or employee of the United States acting in the course of his or her official duties) regarding the President's November 13, 2001 Military Order, the Secretary's Military Commission Orders, and the Military Commission Instructions. This request includes but is not limited to suggestions or comments on potential, proposed, or actual terms of any of those Orders or Instructions and any similar, subsequent, superseding or related Orders or Instructions, whether proposed or adopted.

Compl. ¶ 5 (quoting FOIA Request Letter, Oct. 3, 2003); see Nat'l Inst. of Military Justice, 404 F.Supp.2d at 330. In response, DoD released numerous documents but withheld others it considered exempt, including the nineteen documents NIMJ now seeks which DoD withheld as exempt under FOIA Exemption 5.

On February 26, 2004, NIMJ filed this action in the district court seeking the withheld documents. In an opinion and order filed December 16, 2005, the district court granted partial summary judgment in DoD's favor, concluding, inter alia, that the nineteen documents are exempt from disclosure, as claimed, under FOIA Exemption 5. Nat'l Inst. of Military Justice, 404 F.Supp.2d at 342-47. In an opinion and order filed June 12, 2006, the district court granted final summary judgment in DoD's favor and this appeal followed.

II.

NIMJ appeals the district court's grant of summary judgment as to the nineteen documents the court held exempt under FOIA Exemption 5. Exemption 5 provides that FOIA "does not apply to matters that are ... 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. § 552(b)(5). Relying heavily on the United States Supreme Court's decision in Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001), NIMJ asserts that Exemption 5 does not apply because the documents sought are not "inter-agency" or "intra-agency," as required by the statutory language.⁴ We reject its challenge because our Circuit precedent interprets "intra-agency" to include agency records containing comments solicited from non-governmental parties such as the lawyers whose counsel DoD sought—and, more to the point, our precedent is not inconsistent with Klamath.

In Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980), we held that documents submitted by United States senators in response to a questionnaire they received from the Department of Justice about procedures for selecting and recommending potential judicial nominees were exempt from FOIA disclosure under Exemption 5. We rejected the FOIA requesters' argument that, because the senators were "not agencies within the meaning of the FOIA," the withheld questionnaires "c[ould] not be termed `inter-agency' or `intra-agency'" within the meaning of Exemption 5, reasoning:

When interpreted in light of its purpose, . . . the language of Exemption 5 clearly embraces this situation. The exemption was created to protect the deliberative process of the government, by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision-makers without fear of publicity. In the course of its day-to-day activities, an agency often needs to rely on the opinions and recommendations of temporary consultants, as well as its own employees. Such consultations are an integral part of its deliberative process; to conduct this process in public view would inhibit frank discussion of policy matters and likely impair the quality of decisions.

Ryan, 617 F.2d at 789-90 (citation footnote omitted). Noting that "efficient government operation requires open discussions among all government policy-makers and advisors, whether those giving advice are officially part of the agency or are solicited to give advice only for specific projects," we concluded: "When an agency record is submitted by outside consultants as part of the deliberative process, and it was solicited by the agency, we find it entirely reasonable to deem the resulting document to be an Intra-agency' memorandum for purposes of determining the applicability of Exemption 5." Id. at 790. Integral to the court's analysis was the fact that the documents sought "were generated by an initiative from the Department of Justice, i.e., the questionnaire sent out by the Department to the Senators." Id.⁵

In Formaldehyde Institute v. Department of Health & Human Services, 889 F.2d 1118 (D.C.Cir.1989), we clarified that Exemption 5 extends to documents received from private, nongovernmental parties. In particular, we concluded the exemption protected documents containing comments of two private referees for the American Journal of Epidemiology on a report submitted for publication by a staff member of the Centers for Disease Control (CDC). Relying largely on Ryan, we found immaterial "the absence of any formal relationship" between the reviewers and the Department of Health and Human Services (HHS), 889 F.2d at 1123, explaining that "[w]hether the author is a regular agency employee or a temporary consultant is irrelevant; the pertinent element is the role, if any, that the document plays in the process of agency deliberations,'" id. at 1122 (quoting. CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1161-62 (D.C.Cir. 1987), cert. denied, 485 U.S. 977, 108 S.Ct. 1270, 99 L.Ed.2d 481 (1988)).

More recently, in Public Citizen, Inc. v. Department of Justice, 111 F.3d 168 (D.C.Cir.1997), we held exempt from disclosure records containing communications among former. President Reagan, the National Archives and the Department of Justice and among former President Bush and the same agencies regarding electronic...