Wu v. National Endowment for Humanities, 71-2852.
| Citation | 460 F.2d 1030 |
| Decision Date | 02 May 1972 |
| Docket Number | No. 71-2852.,71-2852. |
| Parties | K.C. WU, Plaintiff-Appellant, v. NATIONAL ENDOWMENT FOR HUMANITIES and Wallace B. Edgerton, as Acting Chairman For the National Endowment For the Humanities, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Anton F. Solms, Jr., Savannah, Ga., for plaintiff-appellant.
R. Jackson B. Smith, Jr., U.S. Atty., Augusta, Ga., David D. Rawlins, Asst. U.S. Atty., Savannah, Ga., Walter H. Fleischer, Raymond D. Battocchi, Dept. of Justice, Washington, D.C., L. Patrick Gray, III, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., for defendants-appellees.
Before TUTTLE, GEWIN and THORNBERRY, Circuit Judges.
Appellant was born in 1903 in China, where he received a "classical" Chinese education. He has lived in the United States for a number of years and is presently a college professor in Georgia. About 1966 appellant became convinced that most Chinese histories available in the United States were replete with factual errors. He attributes this deficiency to the inadequate training of Western sinologues, few, if any, of whom have had the benefit of a "classical" education.
In hope of correcting the errors he perceived, appellant wrote an article, "Local Government in Imperial China," which he submitted to the Journal of Asian Studies, the official publication of the Association for Asian Studies. The article was not accepted for publication. Appellant reacted by writing numerous letters over a period of a year and a half to the editors of the Journal, challenging their rejection and asking for detailed reasons for their decision. Dissatisfied with their response, appellant compiled a booklet that consisted of a brief introduction and conclusion and the forty-two letters comprising his correspondence with the Journal. He sent the booklet to "nearly every known China specialist in this country inviting them to refute his criticisms."1 In addition, he wrote to the presidents of Harvard, Yale, Cornell, Michigan, California, and other colleges and universities, requesting them to urge their China scholars to refute his allegations of error. None of the China scholars replied.
Having failed to generate debate or discernible interest in his theories, appellant concluded he should write a comprehensive history of China in which he would correct the errors he was concerned about. To assist him in this project, he applied to the National Endowment for the Humanities, a federal agency, for a $70,000 grant. Under Endowment procedures, this application was referred initially to five experts on Chinese history, each of whom is a professor of history at an American university. Four of these professors submitted written reviews and the fifth provided an oral review and requested that his comments be kept confidential. Each of the reviewers recommended rejection of the application. Secondly, the application, along with others, was referred to a panel of outside experts who consult the Endowment on the humanities generally but not necessarily on Chinese history in particular. This panel recommended rejection of the application. Next it was referred to a committee of full-time staff members of the Endowment, who reviewed it along with all other applications in the research program. This committee also recommended rejection. Through this third level of consideration, each reviewer who assigned a numerical rating to the application assigned it a rating of "two." This rating signifies that the application is of poor quality and should not be funded even if enough money is available to support every application to the Endowment. Finally, the application was referred to the National Council on the Humanities which rejected it. The Chairman of the Endowment formally advised plaintiff of the rejection.
Appellant brought this action under the Freedom of Information Act, 5 U.S.C.A. § 552(a)(3) which provides in part:
Appellant sought the following information:
The Endowment resisted vigorously, fearing that if its outside consultants were subjected to one of appellant's massive letter-writing campaigns the Endowment would lose their services. Mr. Emerson, an Endowment official, said in his affidavit:
These outside reviewers are not paid but furnish evaluation as a public service for the good of the humanities. Sometimes, they specifically ask that their recommendations be kept confidential. Even when such a specific request is not made, however, it is vital for the Endowment that their recommendations not be available to applicants; only then can reviewers be free to state their true opinion of an application without regard to the feelings of the applicant.
The Endowment based its defense on exemption (5) of the Freedom of Information Act:
The district court granted summary judgment for the Endowment, concluding that the records sought came within the purview of exemption (5).
We agree with the district court that the work product of the Endowment's China specialists are intra-agency memoranda even though the five professors were not actually agency employees. In Soucie v. David, D.C.Cir.1971, 448 F.2d 1067, 1078 n. 44 the court said:
The rationale of the exemption for internal communications exemption (5) indicates that the exemption should be available in connection with the Garwin Report even if it was prepared for an agency by outside experts. The Government may have a special need for the opinions and recommendations of temporary consultants, and those individuals should be able to give their judgments freely without fear of publicity. A document like the Garwin Report should therefore be treated as an intra-agency memorandum of the agency which solicited it.
Extending exemption (5) to outside consultants is especially appropriate in the instant case since Congress specifically empowered the Endowment to "utilize from time to time, as appropriate, experts and consultants." 20 U.S.C. § 959(a)(4).
The remaining question before us is whether the intra-agency memoranda at issue here would "be available by law to a party other than an agency in litigation with the agency," 5 U.S.C.A. § 552(b)(5), supra, that is, would the memoranda be subject to discovery by a party in litigation with the Endowment? It has been consistently held that "purely factual" material, which is generally discoverable under Fed.R.Civ.P. 26(b), is not protected from disclosure by exemption (5). In contrast, advice, recommendations, opinions, and other subjective material are protected.
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