National Institute of Military Justice v. United States Department of Defense

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 5, 2007 Decided January 11, 2008

No. 06-5242

NATIONAL INSTITUTE OF MILITARY JUSTICE,

APPELLANT

v.

UNITED STATES DEPARTMENT OF DEFENSE,

APPELLEE

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.

2

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. 16, 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

3

military commissions, as may be necessary to carry out” the

trials. Id.1

1

The Military Order further provided that the orders and

regulations:

shall include, but not be limited to, rules for the conduct of the

proceedings of military commissions, including pretrial, trial,

and post-trial procedures, modes of proof, issuance of process,

and qualifications of attorneys, which shall at a minimum

provide for—

(1) military commissions to sit at any time and any

place . . .;

(2) a full and fair trial, with the military

commission sitting as the triers of both fact and law;

(3) admission of such evidence as would . . . have

probative value to a reasonable person;

(4) in a manner consistent with the protection of

information classified or classifiable under Executive

Order 12958 of April 17, 1995, as amended, or any

successor Executive Order, protected by statute or

rule from unauthorized disclosure, or otherwise

protected by law, (A) the handling of, admission into

evidence of, and access to materials and information,

and (B) the conduct, closure of, and access to

proceedings;

(5) conduct of the prosecution by one or more

attorneys designated by the Secretary of Defense and

conduct of the defense by attorneys for the individual

subject to this order;

(6) conviction only upon the concurrence of

two-thirds of the members of the commission present

at the time of the vote, a majority being present;

(7) sentencing only upon the concurrence of

two-thirds of the members of the commission present

4

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[ould] 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

at the time of the vote, a majority being present; and

(8) submission of the record of the trial, including

any conviction or sentence, for review and final

decision by [the President] or by the Secretary of

Defense if so designated by [the President] for that

purpose.

66 Fed. Reg. at 57,834-85.

2

The regulations issued in final form on July 1, 2003. See 68 Fed.

Reg. 39,397 (July 1, 2003).

3

The views of individuals who were “not consulted with on a

5

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,

continuing basis or with the understanding and expectation that their

comments would be kept in confidence” were not withheld as exempt.

Hecker Decl. 3-4.

6

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 (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

4

There is no dispute that the withheld documents satisfy the

second requirement in Exemption 5—that they be “unavailable by

law” under one of the established civil discovery privileges—here,

under the “deliberative process” privilege. See Dep’t of Interior v.

Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001). To

qualify for Exemption 5 protection under the deliberative process

privilege, “an agency’s materials must be both ‘predecisional’ and a

part of the ‘deliberative process.’ ” Formaldehyde Inst. v. Dep’t of

Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989) (citing

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-52 (1975)). The

withheld documents are plainly both.

7

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

8

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 (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

5

The court observed that “[t]he questionnaire plus replies must

correspond in origin and process to literally millions of documents and

memoranda of various kinds on a myriad of subjects which repose in

the files of the executive departments and independent agencies, i.e.,

memoranda which were created by someone outside the executive

branch but in response to an initiative from the executive branch,”

noting that “[f]or example, the Department of Agriculture must have

bales of information in response to questionnaires.” Ryan, 617 F.2d

at 790 & n.29.

9

regarding electronic records of each of the two Presidents’

administrations. Acknowledging that “Public Citizen is

doubtless right that a former President is not an agency under

FOIA,” we affirmed that “records of communications between

an agency and outside consultants qualify as ‘intra-agency’ for

purposes of Exemption 5 if they have been ‘created for the

purpose of aiding the agency’s deliberative process.’ ” Pub.

Citizen, 111 F.3d at 170 (quoting Dow Jones & Co. v. Dep’t of

Justice, 917 F.2d 571, 575 (D.C. Cir. 1990) (emphasis by Dow

Jones court)) (citing CNA Fin. Corp. v. Donovan, 830 F.2d

1132, 1161 (D.C. Cir. 1987)).

Taken together, the foregoing cases compel us to conclude

that documents such as the ones here—submitted by non-agency

parties in response to an agency’s request for advice—are

covered by Exemption 5. NIMJ attempts to distinguish those

cases factually but to no avail. NIMJ first asserts, for example,

that neither Ryan nor Public Citizen involved “ ‘ordinary private

citizen[s],’ ” Opening Br. at 14 (quoting Pub. Citizen, 111 F.3d

at 170)—but this argument overlooks the fact that

Formaldehyde Institute did involve private citizens (two outside

referees). NIMJ also contends that the “consultative

relationship” here is not, as it was in Public Citizen, “mandated

by statute,” id.—but neither was it in either Ryan or

Formaldehyde Institute.6 See Ryan, 617 F.2d at 784

6

NIMJ asserts, somewhat inaccurately, that “this Court in

Formaldehyde Institute focused on the statutory mandate underlying

the consultative process at issue.” Opening Br. at 16-17. In that case,

however, it was the decision, not the consultation, that was statutorily

mandated. See Formaldehyde Inst., 898 F.2d at 1124 (“Thus,

Congress has directed HHS to make precisely the kind of

‘deliberative’ decision HHS made as a result of a process that involved

HHS’ receipt of the Review Letter.” (emphasis in original)). In this

case, an equally “deliberative” decision was mandated by the Military

Order.

10

(questionnaires sent to senators in response to Executive Order

No. 12097 directing U.S. Attorney General to assist in

promulgating “standards and guidelines for the selection of

nominees for United States district court judgeships,” 43 Fed.

Reg. 52,455, 52,455 (Nov. 13, 1978)); Formaldehyde Inst., 889

F.2d at 1119 (reviewers commented in response to CDC

employee’s submission of article to private journal).

NIMJ next asserts that the cited Circuit precedents, even if

otherwise controlling, have been “superseded” by the Supreme

Court’s decision in Klamath. Again we disagree.

In Klamath, the Court concluded that Exemption 5 does not

protect documents submitted by Indian Tribes to the Department

of the Interior, which documents addressed tribal interests that

were then the subject of state and federal water allocation

proceedings. In rejecting the Government’s exemption claim,

the Court focused on the language in Exemption 5 requiring that

exempt documents be either “inter-agency or intra-agency,” 532

U.S. at 9, and emphasized that there is “no textual justification

for draining the first condition of independent vitality,” id. at 12.

Noting that the statute was silent “about communications with

outsiders,” the Court observed that “some Courts of Appeals

have held that in some circumstances a document prepared

outside the Government may nevertheless qualify as an

‘intra-agency’ memorandum under Exemption 5” under the so-

called “consultant corollary” to Exemption 5. Id. at 9.

“Typically,” the Court added, “courts taking [this] view have

held that the exemption extends to communications between

Government agencies and outside consultants hired by them.”

Id. “In such cases,” the Court noted, “the records submitted by

outside consultants played essentially the same part in an

agency’s process of deliberation as documents prepared by

agency personnel might have done,” notwithstanding the

consultants “were independent contractors and were not

assumed to be subject to the degree of control that agency

11

employment could have entailed” and they were not necessarily

“devoid of a definite point of view.” Id. The Court concluded,

however, that the Indian Tribes in Klamath were not analogous

to government consultants.

The Court explained that “the fact about the consultant that

is constant in the typical cases is that the consultant does not

represent an interest of its own, or the interest of any other

client, when it advises the agency that hires it.” Id. at 10-11.

“Its only obligations are to truth and its sense of what good

judgment calls for, and in those respects the consultant functions

just as an employee would be expected to do.” Id. at 11. By

contrast the Indian Tribes “necessarily communicate with the

Bureau with their own, albeit entirely legitimate, interests in

mind.” Id. at 12. Although concluding that “this fact alone

distinguishes tribal communications from the consultants’

examples recognized by several Courts of Appeals,” the Court

further found that “the distinction is even sharper, in that the

[Indian] Tribes are self-advocates at the expense of others

seeking benefits inadequate to satisfy everyone.” Id. Finding

the circuit cases on outside consultants thus distinguishable, the

Court expressly declined to decide whether such consultants’

reports “may qualify as intra-agency under Exemption 5.” Id.

at 12.

Given the Supreme Court’s disclaimer and its reasoning, we

perceive no basis to jettison our binding Circuit precedent. See

United States v. Carson, 455 F.3d 336, 384 n.43 (D.C. Cir.

2006) (“[W]e are, of course, bound to follow circuit precedent

absent contrary authority from an en banc court or the Supreme

Court.” (citing Brewster v. Comm’r, 607 F.2d 1369, 1373 (D.C.

Cir. 1979))).7 It remains true that “ ‘federal agencies

7

The dissent contends we should leapfrog our precedent and

construe afresh the statutory language, Dissent at 2—but we do not

write on a clean slate. As we have recounted, in previous opinions this

12

occasionally will encounter problems outside their ken, and it

clearly is preferable that they enlist the help of outside experts

skilled at unravelling their knotty complexities.’ ”

Formaldehyde Inst., 889 F.2d at 1122 (quoting CNA Fin. Corp.

v. Donovan, 830 F.2d 1132, 1162 (D.C. Cir. 1987)). It was

plainly preferable in this case for DoD to consult as widely as

possible in order to fairly but effectively try terrorists in the

aftermath of September 11, 2001. Unlike the Indian tribes in

Klamath, the individuals DoD consulted had no individual

interests to promote in their submissions, as NIMJ itself

concedes. See Reply Br. at 4 n.1 (“The government is correct

that NIMJ has made no suggestion of personal interest in these

proceedings, nor does it intend to impugn the integrity of the

distinguished individuals at issue.”); cf. Cobb. Decl. 4 (stating

that in addition to the “few written comments . . . received from

individual lawyers who had been asked by the General Counsel

to provide confidential legal views”—comments which NIMJ

now seeks—“[m]any more comments came from members of

the public or organizations with an interest in these matters, like

Human Rights Watch or the American Bar Association”—

“[s]ome of these comments were solicited; many were

not”—comments for which DoD did not claim the Exemption)

Circuit has repeatedly interpreted Exemption 5 to extend to documents

generated by non-agency individuals under our consultant corollary.

To the extent they are not “effectively overrule[d]” by Klamath—and

we do not believe that they are as we apply them—we are bound by

their holdings. See United States v. Williams, 194 F.3d 100, 105 (D.C.

Cir. 1999) (stating whether Supreme Court opinion supersedes Circuit

precedent interpreting statute depends on whether opinion “effectively

overrules, i.e., “eviscerate[s]” precedent and concluding: “That the

Supreme Court had doubts about the constitutionality of [a] statute,

doubts that it never had to resolve, is simply too thin a reed to permit

a panel of this court to find similar doubts in a different statute and,

based on those doubts, to depart from circuit precedent expressly

interpreting the statute . . . .”) (internal quotation omitted).

13

(emphasis added). For this reason, the case before us is readily

distinguishable from Klamath, in which “the dispositive point

[was] that the apparent object of the Tribe’s communications is

a decision by an agency of the Government to support a claim

by the Tribe that is necessarily adverse to the interests of

competitors.” Klamath, 532 U.S. at 14. Further, although the

individuals DoD consulted are, as NIMJ notes, private citizens

rather than government employees or paid contract consultants,

we see no reason why the absence of a contract or compensation

should differentiate them from the “typical” outside agency

consultants. These were not random citizens volunteering their

opinions. DOD sought these individuals out and solicited their

counsel based on their undisputed experience and qualifications.

See Ricci Decl. 10-11).8 Their contributions to DoD’s

deliberation in promulgating regulations were no less valuable

or confidential for the lack of compensation or formal contract.

8

They were an undisputedly distinguished group of individuals: a

former DoD General Counsel, a former Secretary of the United States

Department of Transportation, a former Legal Counsel to the

President, a former Director of the Central Intelligence Agency and

the Federal Bureau of Investigation, a former Secretary of the Army,

a former Assistant Trial Counsel at the Nuremberg International War

Trials, a former Special Counsel to the DoD General Counsel, a

former Federal Communications Commission Chairman, a former

Deputy Chief of the Fraud Section in the Department of Justice

Criminal Division, a former DoD Deputy General Counsel, a former

professor at the United States Naval War College and a member of the

Secretary of State’s Advisory Committee for International Law and

the DoD Defense Policy Board, and a law professor and former

Director of the American Law Institute. Second Vaughn Index of

Docs. Withheld, filed in NIMJ v. DoD, No. 04-312 (D.D.C. Mar. 9,

2005).

14

Our established line of consultant cases is all the more

compelling given that we have acknowledged the survival of our

“consultant corollary” in the wake of Klamath. In Judicial

Watch, Inc. v. Department of Energy, 412 F.3d 125 (D.C. Cir.

2005), two public interest organizations sought disclosure of

documents held by eight federal agencies.9 The documents had

been prepared by the National Energy Policy Development

Group (NEPDG), which was established by the President and

composed of high ranking federal officials and employees

detailed from federal agencies. We concluded that the withheld

documents were protected under Exemption 5 notwithstanding

NEPDG did not qualify as an “agency” under FOIA (“because

its sole function [was] to advise and assist the President,” 412

F.3d at 129) and it did not prepare the documents for an agency.

We there acknowledged Klamath’s admonition that, to be

protected by Exemption 5, a document must not only be

pre-decisional and deliberative but “by the terms of Exemption

5, it must also be an ‘inter-agency’ or an ‘intra-agency’ record,”

412 F.3d at 129 (citing Klamath, 532 U.S. at 9). We nonetheless

found that “[o]ur interpretation of Exemption 5”—that

documents held by agencies but prepared by the non-agency

NEPDG come within Exemption 5’s protection—“is not

inconsistent with its textual limitation to ‘intra-agency’ or

‘inter-agency’ communications”; “[r]ather it follows from the

principle, well established in this Circuit, that a document need

not be created by an agency or remain in the possession of the

agency in order to qualify as ‘intra-agency.’ ” Id. at 130. To

exemplify this principle, the court quoted Ryan’s dispositive

determination: “When an agency record is submitted by outside

consultants as part of the deliberative process, and it was

9

The agencies were: the United States Departments of Agriculture,

Commerce, Energy, the Interior, Transportation and the Treasury, the

Environmental Protection Agency and the Federal Emergency

Management Agency. Judicial Watch, 412 F.3d at 127.

15

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.”

Ryan, 617 F.2d at 790, quoted in Judicial Watch, 412 F.3d at

130 (concluding that “[n]ot to treat in the same way documents

shared with or received from the NEPDG, a body established by

the President solely to advise him, and composed entirely of

federal officials, would be anomalous indeed.” (internal citation

omitted)). We base our decision here on the same “well

established” principle.

Notwithstanding this court has itself affirmed post-Klamath

the continuing validity of the Ryan line of cases, NIMJ offers

two particular arguments to support its view that Klamath

supersedes Circuit precedent. We find neither one persuasive.

First, NIMJ contends that the Klamath Court’s admonition

to give “independent vitality” to the statutory terms “inter-

agency” and “intra-agency” forecloses exempting documents an

agency receives from private citizens as such records are neither

inter- nor intra-agency. Contrary to NIMJ’s contention, our

continued adherence to the consultant corollary does not

diminish the “independent vitality” of the statutory terms, as we

made clear in Judicial Watch. In Ryan we explained that “[i]n

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,” 617 F.2d at 789, and

it is “entirely reasonable” to adopt a “common sense

interpretation of ‘intra-agency’ ” that encompasses the advice

submitted by such temporary consultants. In this case, DoD

itself solicited the advice contained in the documents from the

individual nongovernmental lawyers for the agency’s own use

in promulgating terrorist trial commission regulations. Under

such circumstances, it is consistent with Ryan’s “common

sense” interpretation to deem the documents “intra-agency” so

as to come within Exemption 5’s protection. And it is likewise

16

consistent with Klamath’s directive to hew to the language of

the statute. Indeed, Klamath itself acknowledges that

disinterested outside consultants “may be enough like the

agency’s own personnel to justify calling their communications

intra-agency.” 532 U.S. at 12.10

Second, NIMJ contends that Klamath expressly calls into

question the holdings in Ryan and Public Citizen. It is true that

the Court in Klamath stated that the two decisions “arguably

extend beyond what we have characterized as the typical

examples” of agency consultants but, consistent with its

reasoning in the case before it, the Court expressed concern only

with regard to the potential self-interests of the “consultants”

involved in those cases. See Klamath, 532 U.S. at 12 n.4 (noting

the former presidents in Public Citizen “had their own,

independent interests” and in Ryan, the senators’ questionnaire

responses were held exempt “even though we would expect a

Senator to have strong personal views on the matter”). As we

have already noted, however, there is no dispute that the

individuals DoD consulted were not pursuing interests of their

own so as to run afoul of Klamath’s concern. Thus, the extent

to which either Ryan or Public Citizen may have extended

Exemption 5 beyond its permissible scope based on their

peculiar facts is an issue we need not and do not decide here.

10

The dissent seems to suggest that the people consulted must

themselves be “within” the agency, see Dissent at 10, but the statute

requires only that the withheld documents (“memorandums or letters”)

be “intra-agency.” Consultants are in some sense necessarily

“outside” rather than “inside” the agency but the documents they

produce may nonetheless qualify as “intra-agency” documents. See

Klamath, 532 U.S. at 10 (noting that in circuit consultant corollary

decisions “the records submitted by outside consultants played

essentially the same part in an agency’s process of deliberation as

documents prepared by agency personnel might have done”)

(emphasis added).

17

In applying the Ryan line of cases, we emphasize two factors

in their analyses that support our continued application of the

consultant corollary. First, as our cases make clear, the

expectation that communications will remain confidential is

crucial to eliciting candid and honest advice from outside

consultants. See Ryan, 617 F.2d at 789-90 (“[C]onsultations

[with temporary consultants] are an integral part of [an

agency’s] deliberative process; to conduct this process in public

view would inhibit frank discussion of policy matters and likely

impair the quality of decisions.”); Formaldehyde Inst., 889 F.2d

at 1122 (“A predecisional document is a part of the ‘deliberative

process,’ if ‘the disclosure of [the] materials 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.’ ” (quoting Dudman

Commc’ns Corp. v. Dep’t of Air Force, 815 F.2d 1565, 1568

(D.C. Cir. 1987))) (emphasis and alteration in Formaldehyde

Inst.); Pub. Citizen, 111 F.3d at 170 (“[F]or a President to be

able to give adequate assurances of confidentiality to his

advisors, the assurances must last beyond his tenure.”); Judicial

Watch, 412 F.3d at 129 (Exemption 5’s “inclusion in the statute

‘reflect[s] the legislative judgment that the quality of

administrative decision-making would be seriously undermined

if agencies were forced to ‘operate in a fishbowl’ because the

full and frank exchange of ideas on legal or policy matters

would be impossible.’ ” (quoting Tax Analysts v. IRS, 117 F.3d

607, 617 (D.C. Cir.1997)) (alteration in Judicial Watch); see

also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)

(“ ‘(h)uman experience teaches that those who expect public

dissemination of their remarks may well temper candor with a

concern for appearances . . . to the detriment of the

decisionmaking process’ ” (quoting United States v. Nixon, 418

U.S. 683, 705 (1974)) (alteration in Sears)); see also Hecker

Decl. 3 (“The public disclosure of these materials would

18

discourage the frank, open discussions on these issues by these

individuals.”).

Second, throughout the Ryan line of cases, there have been

some indicia of a consultant relationship between the outsider

and the agency. Typically the relationship is evidenced by the

fact that the agency seeks out the individual consultants and

affirmatively solicits their advice in aid of agency business, as

DoD did here. See Ryan, 617 F.2d at 790 (“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.” (emphasis added)); id. (“We

cannot overlook the fact that the documents here were generated

by an initiative from the Department of Justice, i.e., the

questionnaire sent out by the Department to the Senators.”);

Formaldehyde Inst., 889 F.2d at 1122 (“[I]t is unquestionably

true 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.” (emphasis

added; internal quotation omitted)).11 The dissent is therefore

11

In Formaldehyde Institute, the court rejected the FOIA

requester’s contention that Exemption 5 did not apply because “the

outside reviews were not ‘solicited’ by HHS,” explaining:

[I]t is an undisputed fact that “receipt of comments [from

outside reviewers] is an expected result in the submission of

an article for publication.” Furthermore, it is undisputed that

reviewers’ comments are “expected to be confidential.” The

agency does not “solicit” reviews in the sense that it contracts

to receive them, but it does actively seek to do business with

journals from which reviews are both expected and then used

by CDC to determine whether and in what form to publish

articles in the name of the agency. This arrangement reflects

19

wrong to suggest, see Dissent at 10-11, that our cases allow an

agency merely to ask the general public for advice at a press

conference or in the Federal Register and then to classify the

resulting responses as “intra-agency” documents; nothing in our

cases (including today’s decision) even remotely supports the

view that such circumstances would establish a consultant

relationship between the agency and each individual. In

addition, we do not see how the advice here would be any more

“intra-agency,” as the dissent suggests, were the individuals

consulted classified as “committee” members or paid nominal

stipends. See Dissent at 3, 10, 14-15. It was DoD’s formal

solicitation of their advice (with or without nominal pay or title)

that created a consultant relationship and made them analogous

to agency employees and documents containing their advice

“intra-agency.” We need not decide how Exemption 5 might

apply to any agency solicitation for advice; this case involves

the solicitation of advice from a discrete group of experts, not

from “thousands of citizens.” See Dissent at 11.

The dissent alleges that our reliance, in this case, on formal

agency solicitation of advice from a discrete group of experts

(consistent with Circuit precedent) presents a “fundamental

problem” because these “principles . . . have no basis in

Exemption 5’s text.” Dissent at 11. But the dissent itself offers

no anchoring in the text for a bright-line rule requiring that an

agency provide consultants with nominal payment or

membership on a nominal committee if it wishes to consider

documents containing their advice “intra-agency.” Nor does it

a mutual understanding between the agency and journals that

provide confidential reviews regarding how the agency will

use the reviews. The existence of such an arrangement is

more than enough to hold that the Review Letter is a part of

the deliberative process of the agency.

889 F.2d at 1124 (record citations omitted) (alterations added).

20

explain how the text of Exemption 5 limits the volunteer

consultants who can produce intra-agency documents to those

on committees created under the Federal Advisory Committee

Act (FACA), 5 U.S.C. App. 2 §§ 1-16 (nor, indeed, on the

dissent's reading of Klamath, how it authorizes treatment of

FACA-compliant consultants as “intra-agency”). Indeed, while

the dissent is troubled by a belief that our analysis would permit

advice to be solicited by e-mail from “every law professor in the

country,” Dissent at 11, and come within Exemption 5 (a

scenario we expressly do not reach, see supra p. 19), the

dissent’s own analysis would seem to require us to extend

Exemption 5 to such a case so long as the agency’s e-mail

invited “every law professor” to join an “Ad Hoc Committee for

Advice on Legal Compliance” and indicated that a professor

who provided responsive comments would thereby consent to

membership on the Committee. There is nothing in the text of

Exemption 5 that would require such; what matters is the nature

of the relationship between the consultant and the agency, not

the formalities observed.

For the foregoing reasons, we conclude that the nineteen

documents NIMJ seeks are exempt from disclosure under FOIA

Exemption 5. 5 U.S.C. § 552(b)(5). Accordingly, the judgment

of the district court is affirmed.

So ordered.

TATEL, Circuit Judge, dissenting: In November 2001,

President Bush issued a military order authorizing the

Department of Defense to create military commissions to try

suspected terrorists. DoD then sought advice about how to

implement the order from legal luminaries outside the agency,

including Bernard Meltzer, Lloyd Cutler, Ruth Wedgwood,

Newton Minow, Terrence O’Donnell, William Coleman,

Geoffrey Hazard, William Webster, Martin Hoffman, Jack

Goldsmith, and Joseph Tompkins. In response, these outside

experts sent letters, faxes, or emails to DoD. All were unpaid

volunteers and none were appointed by DoD to any type of

committee, task force, or other position, or made a part of

DoD in any other way. Nonetheless, the district court held—

and now this court agrees—that these documents are “intra-

agency memorandums or letters” protected from public

disclosure under Exemption 5 of the Freedom of Information

Act. Despite the textual implausibility of this holding, I

acknowledge that this court’s precedent makes this a close

case. As a policy matter, moreover, I agree with my

colleagues that agencies will obtain more and better advice

from outsiders if able to promise confidentiality. But I must

respectfully dissent because I believe the court’s holding does

exactly what the Supreme Court forbade in Department of

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1

(2001): it makes “‘intra-agency’ . . . a purely conclusory term,

just a label to be placed on any document the Government

would find it valuable to keep confidential.” Id. at 12.

I.

The Freedom of Information Act (FOIA), 5 U.S.C. § 552,

requires agencies to release all records upon public request

unless they fall within an exemption enumerated in the Act.

Klamath, 532 U.S. at 7. These exemptions “must be narrowly

construed,” and “do not obscure the basic policy that

disclosure, not secrecy, is the dominant objective of the Act.”

Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).

2

DoD withheld the documents at issue here under FOIA

Exemption 5, which protects from disclosure “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). “To qualify, a

document must thus satisfy two conditions: its source must be

a Government agency, and it must fall within the ambit of a

privilege against discovery under judicial standards that

would govern litigation against the agency that holds it,” such

as the attorney-client, deliberative process, or attorney work

product privileges. Klamath, 532 U.S. at 8. Because

appellant National Institute of Military Justice concedes that

these documents fall within the deliberative process privilege,

the only question before us is whether they qualify as “intra-

agency.”

In answering this question, the court turns immediately to

our precedent, but I begin with the statute’s text. The prefix

“intra” means “within.” WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 1185 (1993); accord BLACK’S

LAW DICTIONARY 841 (8th ed. 1999). Thus, “the most natural

meaning of the phrase ‘intra-agency memorandum’ is a

memorandum that is addressed both to and from employees of

a single agency.” Klamath, 532 U.S. at 9 (quoting DOJ v.

Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting)).

That said, several courts of appeals, including this one, “have

held that [Exemption 5] extends to communications between

Government agencies and outside consultants hired by them.”

Id. at 10 (emphasis added). For example, in Hoover v.

Department of Interior, 611 F.2d 1132 (5th Cir. 1980), the

Fifth Circuit held that Exemption 5 protected a memo

prepared for the agency by a consultant it hired to appraise a

piece of property it wanted to buy. Similarly, in Government

Land Bank v. General Services Administration, 671 F.2d 663

(1st Cir. 1982), the First Circuit held that Exemption 5

3

protected a property appraisal prepared for the agency by an

outside consultant.

Cases like these, which apply Exemption 5 to protect

documents written by paid outside consultants, certainly

stretch the meaning of “intra-agency,” arguably disregarding

the Supreme Court’s directive that FOIA exemptions “must

be narrowly construed.” Rose, 425 U.S. at 361. But they still

plausibly interpret “intra-agency”: when an agency hires

consultants to perform a task, it’s not unreasonable to say they

have become part of the agency for purposes of that project,

making any documents they produce for the project “intra-

agency.” One could even imagine situations in which a

document written by a volunteer could plausibly be

considered “intra-agency”—for example, if a person were

appointed to a formal advisory committee created by an

agency pursuant to the Federal Advisory Committee Act

(FACA), 5 U.S.C.App. 2 §§ 1-16, and in that capacity wrote a

memorandum to an agency employee. Cf. Soucie v. David,

448 F.2d 1067, 1077-78 & n.44 (D.C. Cir. 1971) (stating in

dicta that a report prepared by outside experts formally

appointed to a federal advisory panel might be protected

under Exemption 5).

In this case, however, the government asks us to stretch

Exemption 5 beyond its breaking point, to cover everyone an

agency asks for advice. The government’s argument flatly

ignores the statute’s text, as well as our obligation to construe

FOIA exemptions narrowly. Nonetheless, the government

insists that our precedent requires the result it seeks, and this

court now agrees, relying principally upon three cases from

this circuit. Below I describe these cases and then explain

why I believe Klamath undermines all of them.

4

The first case, Ryan v. DOJ, 617 F.2d 781 (D.C. Cir.

1980), involved questionnaires the Attorney General sent to

members of the Senate asking how they chose whom to

recommend for district court judgeships. Id. at 784.

Responding to a FOIA request seeking the senators’

responses, the Attorney General argued that the

questionnaires were “intra-agency” documents protected by

Exemption 5. This court agreed, explaining:

Congress apparently did not intend “inter-

agency” and “intra-agency” to be rigidly

exclusive terms, but rather to include any

agency document that is part of the

deliberative process. We cannot overlook the

fact that the documents here were generated by

an initiative from the Department of Justice,

i.e., the questionnaire sent out by the

Department to the Senators. The Senators

replied to the questionnaire. . . . 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 . . . Exemption 5.

Id. at 790 (emphasis added) (footnotes omitted).

In the second case, Formaldehyde Institute v. Department

of Health & Human Services, 889 F.2d 1118 (D.C. Cir. 1989),

an HHS scientist submitted an article for publication in a

peer-reviewed journal. After the journal gave the article to

outside reviewers who recommended against publishing it, the

journal sent a rejection letter, along with the comments of its

5

reviewers, to the scientist and HHS. We held the comments

protected under Exemption 5:

The Institute argues, and the District Court

concluded, that because the Journal is neither

part of HHS nor one of HHS’[s] consultants,

the Review Letter is not entitled to Exemption

5 protections. . . .

....

. . . Ryan established, [however,] . . . that

“inter-agency” and “intra-agency” are not

rigidly exclusive terms, but rather embrace

any agency document that is part of the

deliberative process. Thus, both the Institute

and the District Court err in focusing on the

absence of any formal relationship between the

Journal’s reviewers and HHS.

Id. at 1123 (emphasis added) (citations and internal quotation

marks omitted).

In the third case, Public Citizen, Inc. v. DOJ, 111 F.3d

168 (D.C. Cir. 1997), Public Citizen sought disclosure of

letters sent by former Presidents Reagan and Bush to the

National Archives and Records Administration regarding

access to their presidential papers. We held the letters

protected under Exemption 5:

While Public Citizen is doubtless right

that a former President is not an agency under

FOIA, records of communications between an

agency and outside consultants qualify as

“intra-agency” for purposes of Exemption 5 if

they have been created for the purpose of

aiding the agency’s deliberative process. It is

6

irrelevant whether the author of the documents

is a regular agency employee or a temporary

consultant. Two circumstances make

application of this doctrine to the disputed

records peculiarly appropriate.

First, the former President in this context

can hardly be viewed as an ordinary private

citizen. He retains aspects of his former role—

most importantly, for current purposes, the

authority to assert the executive privilege

regarding Presidential communications. . . .

....

Second, the consultative relationship

involved here is not only explicit, but is

mandated by statute. The Presidential Records

Act establishes an elaborate structure for the

management of Presidential records. The

United States retains ownership, possession

and control. But the President plays a

significant role even after he leaves office.

Id. at 170-71 (emphasis added) (citations and internal

quotation marks omitted).

As an initial matter, Public Citizen and Ryan are

distinguishable from this case. In Public Citizen we relied

heavily on two facts not present here: former Presidents are

still part of the government in many ways, and a statute

expressly required the National Archives and Records

Administration to consult with them. Both facts made it more

plausible than it is here to call the documents at issue “intra-

agency.” And in Ryan the “outsiders” offering comments

were U.S. senators, making it more reasonable to consider

their comments “inter-agency or intra-agency.”

7

That said, were Public Citizen, Ryan, and Formaldehyde

the only cases on point, we would undoubtedly have to rule

for DoD based on the broad principles we announced in these

cases. All three cases say it makes no difference whether the

documents at issue were generated by someone within the

agency. All that matters, they hold, is that the documents

played a role in the agency’s deliberative process, a standard

indisputably met here.

The problem with these cases, however, is that in

Klamath the Supreme Court rejected exactly this type of

reasoning. In Klamath, Indian tribes were communicating

with the Department of Interior about their interests during

upcoming federal and state water allocation decisions. The

government argued that its communications with the tribes

enjoyed Exemption 5 protection because confidential

communications with the tribes were crucial to the agency’s

deliberative process. Flatly rejecting this argument, the

Supreme Court explained: “the first condition of Exemption 5

is no less important than the second; the communication must

be ‘inter-agency or intra-agency.’” 532 U.S. at 9 (quoting 5

U.S.C. § 552(b)(5)) (emphasis added). The Court thus chided

the government for making a fundamental error:

[T]he Department’s argument skips a

necessary step, for it ignores the first condition

of Exemption 5. . . . The Department seems to

be saying that “intra-agency” is a purely

conclusory term, just a label to be placed on

any document the Government would find it

valuable to keep confidential.

There is, however, no textual justification

for draining the first condition of independent

8

vitality . . . .

Id. at 12 (emphasis added).

The Court then went on to decide Klamath on a narrow

ground. While acknowledging that some courts of appeals

had “held that [Exemption 5] extends to communications

between Government agencies and outside consultants hired

by them,” id. at 10 (emphasis added), the Court expressly

declined to decide whether consultants’ reports generally

“may qualify as intra-agency under Exemption 5,” id. at 12.

Instead, it held that even if some communications from paid

consultants could qualify for Exemption 5 protection,

communications from the tribes in Klamath could not because

unlike the typical consultant, who “does not represent an

interest of its own . . . when it advises the agency that hires

it,” id. at 11, the tribes, in their communications with the

Department of Interior, were representing their own interests,

id. at 14.

Klamath thus presents us with a dilemma. While leaving

open the possibility that some communications from

consultants may qualify for Exemption 5 protection, the

decision also makes clear that “the first condition of

Exemption 5 is no less important than the second; the

communication must be ‘inter-agency or intra-agency.’” Id.

at 9 (quoting 5 U.S.C. § 552(b)(5)) (emphasis added).

Klamath also warns that “[t]here is . . . no textual justification

for draining the first condition of independent vitality.” Id. at

12. Thus, our earlier cases protecting communications from

outside consultants under Exemption 5 remain good law only

to the extent they give “independent vitality” to the meaning

of “intra-agency.”

9

In my view, none of the cases the court relies on passes

this test. In Ryan, the court held, in language this court never

mentions: “Congress apparently did not intend ‘inter-agency’

and ‘intra-agency’ to be rigidly exclusive terms, but rather to

include any agency document that is part of the deliberative

process.” 617 F.2d at 790 (emphasis added). Formaldehyde

holds exactly the same thing: “‘Inter-agency’ and ‘intra-

agency’ are not rigidly exclusive terms, but rather embrace

any agency document that is part of the deliberative process.”

889 F.2d at 1123 (citing Ryan, 617 F.2d at 790) (emphasis

added); see also Dow Jones & Co. v. DOJ, 917 F.2d 571, 575

(D.C. Cir. 1990) (“Ryan (and Formaldehyde), then, stand for

the proposition that Exemption 5 permits an agency to protect

the confidentiality of communications from outside the

agency so long as those communications are part and parcel

of the agency’s deliberative process.”). And Public Citizen

holds that “records of communications between an agency

and outside consultants qualify as ‘intra-agency’ for purposes

of Exemption 5 if they have been ‘created for the purpose of

aiding the agency’s deliberative process.’” 111 F.3d at 170

(quoting Dow Jones, 917 F.2d at 575). All three cases thus

define “intra-agency” documents as those that play a role in

the agency’s deliberative process, regardless of their source.

Yet such reasoning is precisely what Klamath rejects: the

“argument skips a necessary step, for it ignores the first

condition of Exemption 5” and makes “‘intra-agency’ . . . a

purely conclusory term.” 532 U.S. at 12.

Despite this crucial language from Klamath, the court

holds that our earlier cases “compel us to conclude that

documents such as the ones here—submitted by non-agency

parties in response to an agency’s request for advice—are

covered by Exemption 5.” Majority Op. at 9. The court

derives this test from Ryan’s statement that “[w]hen an

agency record is submitted by outside consultants as part of

10

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 . . .

Exemption 5.” 617 F.2d at 790. According to the court, this

test from Ryan survives Klamath because it somehow gives

“independent vitality” to “intra-agency.” I would agree if the

court read this passage from Ryan—and limited its holding

here—to mean that Exemption 5 protects documents agencies

solicit from people who could plausibly be called “intra-

agency,” such as paid consultants or members of official

agency committees created under FACA. The problem,

however, is that the court holds that a document qualifies as

“intra-agency” if an agency solicits it from anyone.

Rather than giving “independent vitality” to “intra-

agency,” this test redefines that term. “Intra” means “within,”

and “[i]n the absence of an indication to the contrary, words

in a statute are assumed to bear their ‘ordinary, contemporary,

common meaning.’” Walters v. Metro. Educ. Enters., Inc.,

519 U.S. 202, 207 (1997) (quoting Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993)). In

enacting FOIA, Congress gave no indication that it intended a

previously unheard of definition of “intra,” so we are bound

by the normal meaning of the term. See United States v.

Weber Aircraft Corp., 465 U.S. 792, 802 (1984) (stating that

“compelling evidence of congressional intent . . . would be

necessary to persuade us to look beyond the plain statutory

language” of Exemption 5).

The court nonetheless holds that “documents . . .

submitted by non-agency parties in response to an agency’s

request for advice” are “intra-agency,” Majority Op. at 9,

effectively declaring that people come “within” an agency

once the agency asks for their opinions. In my view, this does

not represent a “common sense interpretation of ‘intra-

11

agency.’” Id. at 15 (quoting Ryan, 617 F.2d at 790). Indeed,

under the court’s rule, if an agency held a press conference

and asked citizens to send in advice, letters from everyone

who responded would qualify as “intra-agency.” Seeking to

escape this untenable result, the court adds a new

requirement: the solicitation must be “formal.” Id. at 19.

Requiring formality, however, does nothing to prevent absurd

results. For example, an agency request for advice published

in the Federal Register would be “formal,” but hardly enough

to make letters sent by members of the public who responded

“intra-agency.” Perhaps by “formal” the court means

individualized, but if an agency sent personalized letters to

thousands of citizens asking for advice, no one could

plausibly call their responses “intra-agency.” The court next

suggests that a solicitation suffices if addressed to a “discrete

group of experts.” Id. But a DoD request for advice to every

law professor in the country would qualify as a request to a

“discrete group of experts,” yet the professors’ responses

plainly would not be “intra-agency.” Apparently unable to

distinguish away this ridiculous consequence of its rule, the

court instead attacks my reading of the statute as lacking any

basis in Exemption 5’s text and leading to equally absurd

results. Id. The court is incorrect on both counts.

My discussion of the plausible outer limits of Exemption

5—as possibly including some paid consultants and unpaid

members of official agency committees—flows directly from

the statute’s text: it rests on the “ordinary, contemporary,

common meaning” of “intra-agency.” Pioneer, 507 U.S. at

388. That is, as I explained above, one can plausibly say that

some paid consultants and members of official agency

committees have come “within” the agency. By contrast, the

principles the court develops in response to the troubling

examples in the previous paragraph have no basis in

Exemption 5’s text. An agency’s mere request for advice, no

12

matter how formal or selective, has nothing to do with

whether a person’s response comes from within or outside the

agency. Without some indicia that the person responding is

“within” the agency, such as a paid consulting contract,

“intra-agency” has no meaning. Moreover, contrary to the

court’s claim, nothing I have said even suggests a “bright-line

rule” that any person who receives “nominal payment” or is a

member of a “nominal committee” qualifies as “intra-

agency.” Majority Op. at 19. I have said only that at least

some paid consultants and members of formally created

agency committees could plausibly qualify as “intra-agency.”

If, as the court hypothesizes, an agency called law professors

“committee members” merely because it asked for their

advice once, id. at 20, they would not qualify as “intra-

agency.” This ruse would fail not only because it would

amount to a transparent attempt to game Exemption 5, but

also because there would be no meaningful indicators that the

professors had actually come within the agency, such as might

exist for members of official agency committees that meet

and consult regularly with agency officials. Making matters

even worse, such a “committee” would violate FACA in

several ways, including that it would have been created

neither by statute nor agency order published in the Federal

Register. 5 U.S.C.App. 2 § 9(a). In the end, however, I need

not address every such hypothetical, for regardless of where

we ultimately establish the outer boundaries of “intra-

agency,” here it is crystal clear that the experts who submitted

comments do not qualify.

Of course, I understand the court’s desire to interpret

Exemption 5 to accomplish what it perceives to be that

exemption’s goal, but we may not use statutory purpose to

produce an unreasonable interpretation. See Freeman v. B &

B Assocs., 790 F.2d 145, 149 (D.C. Cir. 1986) (“[W]e will not

ignore the words of the statute in pursuit of some disembodied

13

congressional purpose.”). “[T]hat Congress might have acted

with greater clarity or foresight” by protecting some

communications from outside volunteers “does not give [this]

court[] a carte blanche to redraft [the] statute[] in an effort to

achieve that which Congress is perceived to have failed to

do.” United States v. Locke, 471 U.S. 84, 95 (1985).

In any event, looking to FOIA’s purpose gives no clear

answer to the question before us. Congress certainly intended

Exemption 5 to ensure that agencies not “operate in a

fishbowl,” H.R. REP. NO. 89-1497, at 10 (1966), as reprinted

in 1966 U.S.C.C.A.N. 2418, 2427, but it also “attempted to

delimit the exception as narrowly as consistent with efficient

Government operation,” S. REP. NO. 89-813, at 9 (1965),

suggesting that Congress never intended courts to expand the

exemption beyond its terms. What’s more, “disclosure, not

secrecy, is the dominant objective of [FOIA].” Rose, 425

U.S. at 361. Because FOIA thus embodies conflicting

purposes, we must presume that Congress used language it

believed properly reconciled these goals. “[D]eference to the

supremacy of the Legislature, as well as recognition that

[members of Congress] typically vote on the language of a

bill, generally requires us to assume that ‘the legislative

purpose is expressed by the ordinary meaning of the words

used.’” Locke, 471 U.S. at 95 (quoting Richards v. United

States, 369 U.S. 1, 9 (1962)).

Finally, and crucially, the court’s definition of “intra-

agency” disregards the Supreme Court’s command that FOIA

exemptions “be narrowly construed,” Rose, 425 U.S. at 361,

and “read strictly in order to serve FOIA’s mandate of broad

disclosure,” Klamath, 532 U.S. at 16. Whatever the policy

merits of the court’s interpretation of “intra-agency,” it is far

from narrow or strict.

14

Despite these problems with its approach, the court

maintains that our precedent demands its result. It offers a

number of reasons for this conclusion, each of which I think

flawed.

To begin with, the court finds “no basis to jettison our

binding circuit precedent,” Majority Op. at 11, because

Klamath never determined whether consultants’ reports “may

qualify as intra-agency under Exemption 5,” 532 U.S. at 12.

But Klamath did decide that courts may not “ignore the first

condition of Exemption 5” and make “‘intra-agency’ . . . a

purely conclusory term,” id.—precisely what this court did in

Ryan, Formaldehyde, and Public Citizen. Thus, the test set

forth in United States v. Williams, 194 F.3d 100 (D.C. Cir.

1999), upon which the court relies, Majority Op. at 12 n.7, is

met here because Klamath “eviscerates” the reasoning in the

Ryan line of cases. Williams, 194 F.3d at 105. Indeed,

Klamath so clearly undermines Formaldehyde that even under

the expansive definition of “intra-agency” the court adopts

today, Formaldehyde would have come out the opposite way,

for there the agency did not solicit the documents it sought to

protect—rather, an outside journal solicited the comments and

later gave them to the agency. This highlights just how much

Klamath has already “jettison[ed] our binding circuit

precedent.” See In re Sealed Case, 352 F.3d 409, 412 (D.C.

Cir. 2003) (“[A] three-judge panel may always . . . determine

. . . that a prior holding has been superseded, and hence is no

longer valid as precedent.” (citations and internal quotation

marks omitted)).

Next, the court insists it is irrelevant that the individuals

who offered advice to DoD were “private citizens rather than

government employees or paid contract consultants,” saying

“we see no reason why the absence of a contract or

compensation should differentiate them from the ‘typical’

15

outside agency consultants.” Majority Op. at 13. But the lack

of a contract or compensation matters. For one thing,

contracting with and paying a consultant establishes a formal

relationship between that person and the agency, making it at

least plausible to consider the person “intra-agency.” In

contrast, the court allows agencies to describe anyone they

ask for advice as “consultants,” never explaining how private

citizens can reasonably be described as “intra-agency” merely

because an agency asks for their views. Moreover, although

the court seeks support for its holding in Klamath’s statement

that outside consultants “may be enough like the agency’s

own personnel to justify calling their communications ‘intra-

agency,’” Majority Op. at 16 (quoting Klamath, 532 U.S. at

12), it ignores that Klamath was referring to “communications

between Government agencies and outside consultants hired

by them.” 532 U.S. at 10 (emphasis added); see also id.

(“[T]he consultants in these cases were independent

contractors . . . .”).

Lastly, the court believes that our post-Klamath decision

in Judicial Watch, Inc. v. Department of Energy, 412 F.3d

125 (D.C. Cir. 2005), reaffirms Ryan, Formaldehyde, and

Public Citizen. But this reading overstates our holding in

Judicial Watch. There we held that although the National

Energy Policy Development Group (NEPDG)—a body

composed entirely of federal employees from many agencies

who advised the president on energy policy—was not an

agency within the meaning of FOIA, Exemption 5 still

protected documents created or received by the group as part

of its deliberative process. Our rationale, however, was not

that it was irrelevant whether the documents were “intra-

agency.” Instead, we held that because the federal employees

who made up the NEPDG were advising the President, they

were, in effect, part of the President’s staff, and their

documents were therefore protected under earlier decisions

16

holding that documents prepared by presidential staff enjoy

Exemption 5 protection. See id. at 129 (“Neither Exemption 5

nor the cases interpreting it distinguish between the decision-

making activities of an ‘agency’ subject to the FOIA and

those of the President and his staff . . . .”).

To be sure, after reaching this conclusion we went on to

note, in language the court cites, that our holding was “not

inconsistent with [Exemption 5’s] textual limitation to ‘intra-

agency’ or ‘inter-agency’ communications,” because in Ryan

and other cases we had established “that a document need not

be created by an agency or remain in the possession of the

agency in order to qualify as ‘intra-agency.’” Id. at 130. As

an example of this principle, we pointed to Ryan’s statement

quoted above: “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 . . . Exemption 5.” Id. (quoting

Ryan, 617 F.2d at 790). In citing this passage from Ryan,

however, we could not possibly have been holding that

documents solicited from outside volunteers qualify as “intra-

agency,” for no such documents were at issue in Judicial

Watch. All we actually held is something undisputed here:

that at least some documents created by people other than

agency employees may qualify as “intra-agency.” Moreover,

as explained above, reading this statement to apply to

documents solicited from anyone fails to account for

Klamath; it redefines “intra-agency” rather than giving the

term “independent vitality.”

II.

Whether agencies should be able to withhold

communications they solicit from outside volunteers is a

difficult policy question about which reasonable people

17

disagree. The National Institute of Military Justice argues

that allowing agencies to withhold such communications will

allow “secret participation by members of the public in

critical agency rule-making processes.” Appellant’s Opening

Br. 21. The government and this court respond that allowing

agencies to promise confidentiality will encourage candid

advice from outside advisors and thus improve agency

decisionmaking.

As a policy matter, I agree with my colleagues. Agencies

will obtain better advice if they can promise confidentiality to

outside volunteers whose views they solicit, and I think the

benefits of such advice will outweigh the cost in lost

transparency. But my view on this issue is not the one that

matters. The proper way to resolve this policy issue is not for

this court to stretch Exemption 5’s words to cover whatever it

thinks they should, but rather for Congress to hold hearings,

determine whether it wishes to protect communications from

outside volunteers, and modify Exemption 5’s language

accordingly.

We find ourselves in a situation similar to that we faced

in Dow Jones & Co. v. DOJ, 917 F.2d 571 (D.C. Cir. 1990).

There we said: “It may well be true that if Congress had

thought about this question, the Exemption would have been

drafted more broadly to include [communications like this

one]. But Congress did not, and the words simply will not

stretch to cover this situation . . . .” Id. at 574. Because

Exemption 5’s words “simply will not stretch to cover this

situation,” id., and because the result the court reaches

contravenes Klamath, I would reverse the district court and

direct DoD to make these documents public.