Quarles v. Department of Navy

• Decision Date: 26 January 1990
• Docket Number: No. 88-5328,88-5328
• Parties: Randy QUARLES, Appellant, v. DEPARTMENT OF THE NAVY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 390

893 F.2d 390

282 U.S.App.D.C. 183

Randy QUARLES, Appellant, v. DEPARTMENT OF THE NAVY, Appellee.

No. 88-5328.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 20, 1989.

Decided Jan. 26, 1990.

Appeal from the United States District Court for the District of Columbia (Civil Action Number 85-03395).

Eleanor H. Smith, with whom Alan B. Morrison, Washington, D.C., and Patti A. Goldman, were on the brief, for appellant.

Thomas J. McIntyre, with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellee.

Before MIKVA, EDWARDS and WILLIAMS, Circuit Judges.

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

STEPHEN F. WILLIAMS, Circuit Judge:

This appeal involves the application of subsection (b)(5) of the Freedom of Information Act, 5 U.S.C. Sec. 552 (1988), known as the "deliberative process" exemption, to certain cost estimates prepared by Navy officials in the course of the Navy's selecting homeports for ships in a new battleship group. We affirm the district court's finding that subsection (b)(5) protects the estimates from mandatory disclosure.

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In the mid-1980s the Navy initiated a search for "homeports" for the 130 ships that it proposed to add to the U.S. fleet. One "battleship group," consisting of a refurbished USS Wisconsin and five ancillary vessels designed to carry guided missiles (a cruiser, a destroyer and three frigates), was slated for the Gulf of Mexico. The Navy initially planned to deploy the Gulf Coast group from a single U.S. harbor, and convened a special study team, composed of representatives of various command and technical units, to evaluate seven finalist sites on operational, logistic, environmental and other criteria. The team's final report, "Gulf Coast Battleship Surface Action Group: Preferred Alternative Home Port Evaluation," also included the material disputed here--cost estimates for each site, including the costs of land, ship berthing, dredging, buildings and facilities, and utilities. After completion of the study, the Secretary of Defense decided (for reasons unknown to us) not to designate a single Gulf Coast homeport for the battleship group, but rather to make the allocation as part of a broader plan, assigning 29 vessels among nine different harbors. Joint Appendix ("J.A.") 30, 269.

Appellant Randy Quarles is a reporter for Newhouse News Service, writing primarily for newpapers in Mobile and Huntsville, Alabama. Before the Pentagon made its final decision in the matter, he submitted a FOIA request to the Navy for materials relating to the search process. In addition to 7,600 pages of other responsive materials, J.A. 312, the Navy released what it characterized as "the truly factual information in the [study team's] report--such as the composition of the battleship task force, physical dimensions of the ships, personnel compliment [sic] for each ship, photographs of the proposed ports, etc." J.A. 32. The Navy excised the rest--analysis, conclusions and cost estimates. Quarles sought judicial review, but failed to persuade the district court to force disclosure of the portions withheld. See Memorandum Opinion, No. 85-3395 (D.D.C. July 29, 1988). He filed a timely appeal to this court, limited to the Navy's deletion of the cost estimates.

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Exemption 5 excludes from FOIA's broad 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) (1982). It incorporates the rule of discovery, antedating the Act, that " 'confidential intra-agency advisory opinions ... are privileged from inspection.' " EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973) (quoting Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 946, 141 Ct.Cl. 38 (1958)). The exemption is meant "to encourage the frank discussion of legal and policy issues" in government deliberation. Wolfe v. HHS, 839 F.2d 768, 773 (D.C.Cir.1988) (en banc) (quoting S. REP. 813, 89th Cong., 1st Sess. 9 (1965)).

To receive the protection of Exemption 5, a document must first be pre-decisional. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-52, 95 S.Ct. 1504, 1516-17, 44 L.Ed.2d 29 (1975). Material that follows the adoption of a policy is thought to represent interpretation of it, and the courts have ordered disclosure of post-decisional documents "to prevent bodies of 'secret law' from being built up and applied by government agencies." Schwartz v. IRS, 511 F.2d 1303, 1305 (D.C.Cir.1975). Although it may sometimes be difficult to peg a document on the decisional continuum, see Sears, Roebuck, 421 U.S. at 152 n. 19, 95 S.Ct. at 1517 n. 19, the cost estimates sought by Quarles plainly pass this first test. The team report was "prepared in order to assist an agency decisionmaker in arriving at his decision," see Renegotiation Board v. Grumman Aircraft, 421 U.S. 168, 184, 95 S.Ct. 1491, 1500, 44 L.Ed.2d 57 (1975); it was completed in May 1985, while the basing decision was not made until July of that year. See J.A. 40, 269.

What is disputed is the requirement that the document be deliberative in character. See Wolfe, 839 F.2d at 774. Courts have typically required disclosure of "purely factual material," see, e.g., Mink, 410 U.S. at 88, 93 S.Ct. at 836, presumably because the prospect of disclosure is less likely to make an advisor omit or fudge raw facts, while it is quite likely to have just such an effect on "materials reflecting deliberative or policy-making processes," id. at 89, 93 S.Ct. at 837. See also Dudman Communications Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1569 (D.C.Cir.1987); Playboy Enterprises, Inc. v. Dep't of Justice, 677 F.2d 931, 935 (D.C.Cir.1982); Mead Data Central, Inc. v. Dep't of the Air Force, 566 F.2d 242, 256 (D.C.Cir.1977) (Mead Data I ).

Even when requested material is found to be factual, the courts have held it exempt where they were convinced that disclosure "would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Dudman, 815 F.2d at 1568. With this second step, courts have sometimes allowed the withholding of factual summaries prepared by decisionmakers, see Lead Industries Ass'n v. OSHA, 610 F.2d 70, 85 (2d Cir.1979); Washington Research Project v. HEW, 504 F.2d 238, 250-51 (D.C.Cir.1974); Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C.Cir.1974), as of other factual materials. See Wolfe, 839 F.2d at 774 (protecting log showing routing path and dates of FDA recommendations, i.e., facts about the inner workings of the deliberative process itself); Dudman (protecting factual material in early drafts of an official history on grounds that disclosure would unduly reveal editorial judgments). But this additional inquiry has been used only to expand Exemption 5's protections. Otherwise, "the fact/opinion distinction 'offers a quick, clear, and predictable rule of decision,' for most cases." Wolfe, 839 F.2d at 774 (quoting Mead Data I, 566 F.2d at 256). This is one such case.

Quarles would have us characterize the cost estimates as fact. Numbers have a surface precision that may lead the unsophisticated to think of them as fixed, and of course some are--Waterloo was fought in 1815. But cost estimates such as these are far from fixed, as anyone knows who has had two contractors bid on a home improvement or has compared budget estimates with final costs of a government project. They derive from a complex set of judg ments--projecting needs, studying prior endeavors and assessing possible suppliers. They partake of just that elasticity that has persuaded courts to provide shelter for opinions generally.

Quarles argues nonetheless that the Navy has not shown that harm to the decisionmaking process would result from disclosure of the estimates. Appellant's Reply Brief 2. This claim must fail. The district court expressly found that disclosure of the information sought "could chill discussion at a time when agency opinions are fluid and tentative." Mem.Op. at 6 (quoting Wolfe, 839 F.2d at 776). The court thus credited the Navy's representation that "[t]o disclose ... details of...