Pub. Citizen Inc v. Office Of Mgmt.

• Decision Date: 19 June 2009
• Docket Number: No. 08-5004.,08-5004.
• Citation: 598 F.3d 865
• Parties: PUBLIC CITIZEN, INC., Appellan V. OFFICE OF MANAGEMENT AND BUDGET, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

598 F.3d 865

PUBLIC CITIZEN, INC., Appellan V. OFFICE OF MANAGEMENT AND BUDGET, Appellee.

No. 08-5004.

United States Court of Appeals

District of Columbia Circuit.

Argued Feb. 13, 2009.

Decided June 19, 2009.

Reissued March 11, 2010.

Appeal from the United States District Court for the District of Columbia (No 07cv00409).

Adina H. Rosenbaum argued the cause for appellant. With her on the briefs was Brian Wolfman.

Alexander D. Shoaibi, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant LI.S. Attorney.

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

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in part and dissenting in part filed by Senior¹ Circuit Judge WILLIAMS.

TATEL, Circuit Judge:

Seeking to learn which federal agencies submit materials to Congress without prior clearance by the Office of Managementand Budget, Public Citizen, a non-profit public interest organization, filed a Freedom of Information Act request for documents related to OMB's legislative and budgetary clearance policies. OMB released redacted versions of fourteen documents, claiming that the redacted portions are protected from disclosure under two of FOIA's nine statutory exemptions—Exemption 2 for predominantly internal documents and Exemption 5 for predecisional and deliberative documents. The district court held that OMB was entitled to withhold the redacted portions of the documents under Exemption 2 and granted summary judgment to OMB. Reviewing de novo, we disagree. Having examined the unredacted documents, we conclude that they do not relate predominantly to OMB's internal practices and are thus unprotected by Exemption 2. And because Exemption 5 requires that materials be both predecisional and deliberative, it likewise provides no protection for the majority of the documents' content. We therefore reverse in part and remand for the district court to order the release of the documents with any redaction necessary to protect portions that qualify as both predecisional and deliberative.

I.

The Office of Management and Budget (OMB), located in the Executive Office of the President and subject to FOIA, see 5 U.S.C. § 552(f)(1); Meyer v. Busk, 981 F.2d 1288, 1294 (D.C.Cir.1993), helps the President prepare the federal budget and ensures that legislation, testimony, reports, and policies prepared by other federal agencies are consistent with Administration policy. Two OMB circulars require federal agencies to clear materials with OMB before submitting them to Congress Circular No. A-ll covers budget-related materials, and Circular No. A-19 covers proposed legislation, reports to Congress and congressional testimony. Pursuant to Circular A-19, OMB reviews the submissions, solicits comment from affected agencies, and gives feedback to the proposing agency. Circular A-19 provides that agencies "shall incorporate" OMB's advice in transmitting their legislative proposals to Congress and "shall not submit to Congress any proposal that OMB has advised is in conflict with the program of the President or has asked the agency to reconsider as a result of the coordination process." Office of Mgmt. & Budget, Executive Office of the President, OMB Circular No A-19, Legislative Coordination and Clearance H 8(C) (1979) ("Circular No. A19"). Circular A-19 applies to all executive agencies except those "specifically required by law to transmit their legislative proposals, reports, or testimony to the Congress without prior clearance." Id.

Unable to find a publicly available list of agencies that transmit their materials to Congress without prior OMB clearance— so-called "bypass agencies"—Public Citizen filed a FOIA request with OMB. The request asked for:

"(1) All records listing agencies that may directly submit legislative proposals, reports, or testimony to Congress without receiving OMB clearance; (2) [ajll records listing agencies that may directly submit budget-related materials to Congress without receiving OMB clearance; and (3) [a]ll records explaining that agencies or an agency may directly submit legislative or budget-related materials to Congress without receiving OMB clearance or providing statutory authority for agencies or an agency to directly submit legislative or budget-related materials to Congress without receiving OMB clearance."

Adina H. Rosenbaum Deck Ex. A at 1.

In response, OMB identified two documents but refused to release them, claim-ing they were exempt from disclosure under FOIA. Public Citizen appealed, challenging the decision to withhold the two documents and the adequacy of the search given how few responsive documents it yielded. When OMB denied the appeal, Public Citizen brought this action in the district court. After Public Citizen filed its complaint, OMB, "out of an abundance of caution, " Appellee's Br. 5, conducted a second document search, identifying twenty additional potentially responsive documents for a total of twenty-two, including the fourteen documents at issue in this appeal. Although OMB released redacted versions of the fourteen documents, it continued to withhold significant portions of them.

As described in OMB's amended Vaughn index, see Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973), thirteen of the fourteen documents—document 1 and documents 3 to 14—represent the current version and various outdated versions of a memo to OMB staff from OMB's Assistant Director for Legislative Reference. James Jukes Am. Deck Attach. A at 1. The memo provides "a background discussion of legal and statutory issues related to bypass authorities, a list of the bypass agencies and a summary description of the agencies' budgetary and legislative 'bypass' authorities and a discussion of bypass authority and Inspectoral General]." Id. The remaining document, document 2, entitled "Agencies Exempt from the Legislative Clearance Process, " is a two-page excerpt from a document called "OMB Roles and Responsibilities." Id. OMB describes all fourteen documents as summarizing "the currently-held internalOMB perspectives and views regarding which Federal agencies have a basis—in statute or in prior agency and OMB practice—for not submitting to OMB, for interagency review, the drafts of their submissions to Congress." Jukes Am. Deck ¶26. According to OMB, then, the documents deal with two kinds of bypass: bypass based "in statute" and bypass based "in prior agency and OMB practice." Id,

The portions of the documents OMB released describe agencies with statutorily-based bypass authority. The released portions include straightfoi-ward lists of such agencies, as well as more detailed summaries of the statutory basis for their bypass authority. To take just one example, the Chemical Safety and Hazard Investigation Board appeal's as one of eleven agency names on a list of "Agencies with Statutorily-Based Budgetary and Legislative 'Bypass' Provisions." Adina H. Rosenbaum Supp. Deck Ex. E at 1. It also appears in a section entitled "Summary Description of Agencies' StatutorilyBased Budgetary and Legislative 'Bypass' Provisions" and is described as follows:

2. Chemical Safety and Hazard Investigation Board P.L. 101-549, Sec. 301 (amending Sec. 112(F)(6)(R) of the Clean Air Act; 104 Stat. 2569; 42 USCA Sec. 7412(r)(6)(R)) provides that any budget estimate, request, supplemental request, or information, any legislative recommendation, or prepared testimony submitted to the President or a Federal Agency shall be concurrently transmitted to Congress. No Federal official or agency can require prior review of the Board's budgetary or legislative communications to the Congress.

Id, at 3.

OMB moved for summary judgment as to the undisclosed portions of the documents, claiming that the information they contain is exempt from disclosure under Exemption 2 (predominantly internal documents) and Exemption 5 (predecisional and deliberative documents). Public Citizen also moved for summary judgment, claiming that neither exemption applies. After reviewing the documents in camera, the district court granted summary judg-ment to 0MB, holding that the documents were exempt from disclosure under Exemption 2. Pub. Citizen. Inc. v. Office of Mgmt. & Budget, 520 F.Supp.2d 149, 15455 (D.D.C.2007). It thus had no reason to address whether they also qualified under Exemption 5. Id. at 156.

Public Citizen appeals, arguing that neither exemption authorizes OMB to withhold the documents. Our review is de novo, Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1111-12 (D.C.Cir.2007), and like the district court, we have reviewed the documents in camera. Mindful of OMB's right to seek further review of our decision, we have redacted portions of this opinion to protect the confidentiality of information not yet disclosed, as has our dissenting colleague.

II.

Enacted "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny, " the Freedom of Information Act reflects "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language, " Dep't of Air Force v. Rose. 425 U.S. 352 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal quotation marks omitted). The Supreme Court has emphasized that "disclosure, not secrecy, is the dominant objective of the Act." Id. at 361, 96 S.Ct. 1592. FOIA allows agencies to withhold only those documents that fall under one of nine specific exemptions, 5 U.S.C. § 552(b), which are construed narrowly in keeping with FOIA's presumption in favor of disclosure, Rose, 425 U.S. at 361, 96 S.Ct. 1592. The agency bears the burden of showing that a claimed exemption applies. Loving v. Dep't ofDef, 550 F.3d 32, 37 (D.C.Cir.2008). We address each of OMB's claimed exemptions in turn.

Exemption 2

Exemption 2 allows agencies to withhold documents that are "related solely to the internal personnel...