Public Citizen, Inc. v. Office of Management & Budget

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2009 Decided June 19, 2009

Reissued March 11, 2010

No. 08-5004

PUBLIC CITIZEN, INC.,

APPELLANT

v.

OFFICE OF MANAGEMENT AND BUDGET,

APPELLEE

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 U.S.

Attorney.

Before: ROGERS and TATEL, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

2

Opinion concurring in part and dissenting in part filed by

Senior Circuit Judge WILLIAMS.

TATEL, Circuit Judge: Seeking to learn which federal

agencies submit materials to Congress without prior clearance

by the Office of Management and 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. Bush, 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

3

agencies to clear materials with OMB before submitting them

to Congress: Circular No. A-11 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 ¶ 8(C) (1979) (“CIRCULAR NO. A-19”). 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) [a]ll

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

4

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 Decl. Ex. A at 1.

In response, OMB identified two documents but refused

to release them, claiming 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. Decl. 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

Inspector[s] General[].” Id. The remaining document,

5

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 internal-OMB 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. Decl. ¶ 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 straightforward 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 appears as

one of eleven agency names on a list of “Agencies with

Statutorily-Based Budgetary and Legislative ‘Bypass’

Provisions.” Adina H. Rosenbaum Supp. Decl. Ex. E at 1. It

also appears in a section entitled “Summary Description of

Agencies’ Statutorily-Based 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

6

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

judgment to OMB, holding that the documents were exempt

from disclosure under Exemption 2. Pub. Citizen, Inc. v.

Office of Mgmt. & Budget, 520 F. Supp. 2d 149, 154–55

(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.

7

Rose, 425 U.S. 352, 360–61 (1976) (internal quotation

marks omitted). The Supreme Court has emphasized that

“disclosure, not secrecy, is the dominant objective of the

Act.” Id. at 361. 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. The agency bears the burden of

showing that a claimed exemption applies. Loving v. Dep’t of

Def., 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 rules and practices

of an agency.” § 552(b)(2). Despite the statute’s reference to

documents related “solely” to internal rules and practices, we

have interpreted Exemption 2 to cover documents that are

“predominantly internal” and that meet one of two additional

requirements. Crooker v. Bureau of Alcohol, Tobacco &

Firearms, 670 F.2d 1051, 1074 (D.C. Cir. 1981) (en banc).

The first, known as the “low 2” exemption and not at issue

here, applies to predominantly internal materials that relate to

“trivial administrative matters of no genuine public interest.”

Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992)

(internal quotation marks omitted). The second, known as the

“high 2” exemption, id., and claimed by OMB in this case,

applies to predominantly internal materials if their disclosure

“significantly risks circumvention of agency regulations or

statutes,” Stolt-Nielsen Transp. Group Ltd. v. United States,

534 F.3d 728, 732 (D.C. Cir. 2008) (internal quotation marks

omitted).

We have confronted the “high 2” exemption in two key

cases. In Jordan v. United States Department of Justice, 591

8

F.2d 753 (D.C. Cir. 1978), we ordered the release of

prosecutorial guidelines used by United States Attorneys,

finding that the guidelines fail to qualify as predominantly

internal. We explained that the guidelines are not “personnel”

rules and thus fall outside the statutory exemption for

documents “related solely to the internal personnel rules and

practices of an agency.” Id. at 763. We also emphasized that

the guidelines have a “definite impact on the public.” Id. In

Crooker v. Bureau of Alcohol, Tobacco & Firearms, which

we heard en banc, we retreated from Jordan’s reliance on

Exemption 2’s use of the term “personnel,” but nonetheless

affirmed Jordan’s holding that the guidelines were not

predominantly internal. 670 F.2d 1051, 1073–75 (D.C. Cir.

1981). We reasoned: “The guidelines on prosecutorial

discretion are instructions to agency personnel (e.g.,

prosecutors) on how to regulate members of the public.

Knowledge of those regulations may be as significant to

members of the public as is knowledge of statutory sentencing

provisions.” Id. at 1075. As to the document at issue in

Crooker itself—a Bureau of Alcohol, Tobacco and Firearms

manual describing law enforcement surveillance techniques—

we concluded that it qualified as predominantly internal

because it “is not concerned with regulating the behavior of

the public, but consists solely of instructions to agency

personnel” and does not “attempt to modify or regulate public

behavior only to observe it for illegal activity.” Id.

Here the district court held that the OMB documents are

predominantly internal because they “offer guidance to OMB

officials regarding other agencies’ ability to bypass

presidential review of those agencies’ budgetary and/or

legislative recommendations,” because the information they

contain “is plainly intended for internal use only,” and

because there is “no evidence that the documents have ever

been circulated to (or relied upon by) individuals outside of

9

the Agency.” Pub. Citizen, 520 F. Supp. 2d at 155. Echoing

these reasons, OMB now argues that the documents are

predominantly internal because they have never been released

outside OMB, are used by OMB personnel in internal policy

discussions, and contain “‘a description of the views and

perspectives of OMB officials’ interpretations of the

views of certain agencies regarding legislative clearance

requirements,’” Appellee’s Br. 12 (quoting Jukes Am. Decl.

Attach. A at 1). OMB also insists that the documents are

predominantly internal because they concern other

government agencies, not the public at large, and because

they merely serve as briefing materials for OMB personnel

and thus seek to regulate no one.

We can easily dispense with several of these arguments.

To begin with, the mere fact that the documents were

intended for internal OMB use and have never been circulated

outside the agency cannot alone render them “predominantly

internal.” See Morley v. CIA, 508 F.3d 1108, 1125 (D.C. Cir.

2007) (“[Exemption 2] does not shield information on the sole

basis that it is designed for internal agency use.” (internal

quotation marks omitted)). Otherwise, agencies could

effectively avoid disclosure of any manner of information

simply by stamping it “for internal use only.” Indeed, OMB

itself seems to acknowledge as much, pointing out that the

district court relied on other factors beyond OMB’s treatment

of the documents as internal. Appellee’s Br. 22.

Nor is the documents’ use in internal discussions

conclusive. Agencies regularly refer to policies and

regulations as part of internal discussions without rendering

such policies (particularly those with significant external

impact) predominantly internal. For example, one could

easily imagine conversations within the U.S. Attorney’s office

in which agency personnel discuss the prosecutorial

10

guidelines we found not predominantly internal in Jordan.

Such internal discussions would neither diminish the extent to

which the guidelines “regulate members of the public” nor

reduce the significance of “[k]nowledge of those regulations

. . . to members of the public,” Crooker, 670 F.2d at 1075.

OMB’s claim that the documents qualify for Exemption 2

because they concern other government agencies rather than

the public at large likewise fails. Exemption 2 covers

documents that are “related solely to the internal personnel

rules and practices of an agency.” § 552(b)(2) (emphasis

added); see also Vaughn, 523 F.2d at 1151 (Leventhal, J.,

concurring). For Exemption 2 to apply, then, the documents

would have to relate predominantly to the internal practices of

OMB itself, not of the government as a whole. In Vaughn v.

Rosen, we concluded that Civil Service Commission materials

dealing with other government agencies’ personnel practices

were not covered by Exemption 2. 523 F.2d at 1143. As

Judge Leventhal explained in his concurring opinion:

[T]he Federal Personnel Manual, issued by the

Commission for government-wide application, could

certainly not be withheld from the public in reliance

on exemption 2; its subject is federal personnel

policy, not internal personnel policy of an

agency. . . . A construction of (b)(2) exempting the

Civil Service Commission reports at issue in this

case would . . . totally remove the sphere of Civil

Service Commission operations from the public eye.

Id. at 1151 (Leventhal, J., concurring) (footnotes omitted). So

too here. If OMB documents concerning other government

agencies were categorically exempt, OMB, which is subject to

FOIA and whose primary function involves oversight and

11

coordination of other government agencies, would be largely

exempt from FOIA.

This leaves OMB’s argument that like the surveillance

manual in Crooker, the documents at issue here “‘make no

attempt to modify or regulate public behavior[,] only to

observe it.’” Appellee’s Br. 17 (quoting Crooker, 670 F.2d at

1075) (alteration in original). Evaluating this argument

requires a more detailed understanding of the documents’

content, purpose, and use. Public Citizen, which of course

has never seen the documents, suspects that they establish

which agencies may bypass OMB despite the lack of clear

statutory authority to do so and in this way regulate other

agencies. OMB disputes this characterization, stating that the

documents “do not govern the actions of either OMB

personnel or other federal agencies,” Appellee’s Br. 13, and

emphasizing that OMB cannot override Circular A-19’s

determination that only agencies with statutory authority are

allowed to bypass the clearance process, Oral Arg. at 17:00–

17:20. But as Public Citizen points out, the titles of the

documents suggest just the opposite. For example, document

2, entitled “Agencies Exempt from the Legislative Clearance

Process,” lists those agencies having statutory bypass

authority but also includes a separate block of text, redacted

by OMB, suggesting that the list of agencies considered

“exempt” from the clearance process includes something

more than just those with statutory authority. Indeed, our in

camera review demonstrates that this document in fact covers

statutorily-based bypass agencies as well as customary bypass

agencies, both under the overall heading of agencies

“exempt” from the clearance process. Similarly, a section of

document 1 broadly entitled “Bypass Agencies” includes both

statutory and customary bypass agencies, implying that OMB

considers both to be “Bypass Agencies.” Moreover,

document 1 expressly states that “[f]orty-four Federal

12

agencies currently have some form of legislative and/or

budgetary ‘bypass.’ [These include] agencies with . . . non-

statutory (i.e., ‘informal’) legislative ‘bypasses.’” Mem. from

Jim Jukes to OMB Policy Officers and DADs 1 (Feb. 20,

2001) (“2001 Jukes Mem.”). On its face, then, document 1

appears to state OMB’s policy regarding which agencies

“currently have” an informal bypass. And OMB itself

describes the documents as containing its “perspectives and

views regarding which Federal agencies have a basis—in

statute or in prior agency and OMB practice”—for bypassing

the clearance process. Jukes Am. Decl. ¶ 26 (emphasis

added). OMB may well be correct that it lacks authority to

grant a bypass, but by treating some agencies as if they

“currently have” an informal bypass, it would seem to be

implementing a policy of granting de facto bypasses.

But even if, as OMB insists, it never uses the documents

to determine whether to enforce the clearance requirements

for a particular agency, the documents do identify those

agencies OMB treats differently in its clearance process.

Indeed, much like the prosecutorial guidelines found subject

to disclosure in Jordan, the documents determine OMB’s

interaction with outsiders—an interaction having real-world

effects on the behavior of both bypass and non-bypass

agencies. For example, as part of the Circular A-19 clearance

process, OMB refers proposed legislation to affected agencies

for comment. When referring such materials to a bypass

agency, however, OMB, acting pursuant to its “longstanding

practice,” follows a different procedure: “In general, an OMB

referral is not made to a ‘bypass’ agency unless the agency

agrees to refrain from forwarding to Congress OMB-referred

material or its response to an OMB referral.” 2001 Jukes

Mem. 1. The documents thus list those agencies required by

OMB to act differently than most federal agencies, either by

agreeing not to forward OMB materials to Congress or by

13

commenting only informally or not at all on submissions from

other agencies. In addition to depriving listed bypass

agencies of a full opportunity to submit formal comments, this

policy affects the feedback that non-bypass agencies receive

and must incorporate into their congressional submissions.

The list of bypass agencies thus stands in marked contrast to

the publicly available policy reflected in Circulars A-11 and

A-19. As we have repeatedly explained, FOIA provides no

protection for such “secret law” developed and implemented

by an agency. See, e.g., Nat’l Treasury Employees Union v.

U.S. Customs Serv., 802 F.2d 525, 531 (D.C. Cir. 1986).

According to the dissent, the documents deal only with

peripheral activity as opposed to agencies’ primary conduct.

Specifically, the dissent views the referral process as mere

“bureaucratic information exchange,” Dissenting Op. at 9, but

Circular A-19 makes plain that this process is central to the

clearance function. One of the main purposes of the clearance

process is to “assure appropriate consideration of the views of

all affected agencies.” CIRCULAR NO. A-19 ¶ 3. Upon

receiving a submission from a non-bypass agency, OMB

“undertake[s] the necessary coordination with other interested

agencies of an agency’s proposed legislation or report,”

including requesting “other agency views within specified

time limits.” Id. ¶ 8(a)(1). Referral of an agency submission

to other agencies for comment thus represents a key part of

the legislative clearance process. As such, the referral policy

does more than merely “influence” the behavior of other

agencies. It limits or even eliminates the role bypass agencies

play in clearing proposals submitted by non-bypass agencies,

even when such proposals affect the bypass agencies’ own

functions. This policy in turn determines the scope of advice

OMB provides to non-bypass agencies, advice that those

agencies must incorporate into their congressional

submissions.

14

The dissent also rejects the view that the documents in

fact determine which agencies may bypass the clearance

process, describing their “real purpose” as limited to the inter-

agency referral process. Dissenting Op. at 3. As noted above,

however, on their face the documents strongly suggest that

they do in fact represent the list of agencies allowed to bypass

the process. To be sure, Assistant Director Jukes asserted that

the documents do not represent OMB’s “official policy” on

which agencies may bypass, Jukes Am. Decl. ¶ 28, but an

agency may not avoid FOIA by deeming its de facto policy

“unofficial.” Moreover, Jukes himself describes the

documents as summarizing OMB’s views “regarding which

Federal agencies have a basis—in statute or in prior agency

and OMB practice—for not submitting [materials for OMB

clearance].” Id. ¶ 26 (emphasis added). Indeed, the very

existence of a policy that treats bypass agencies differently

with respect to referral of submissions for interagency

comment indicates that the documents in fact contain OMB’s

policy of acquiescing in the listed agencies’ asserted bypass

authority. If the listed agencies had no bypass authority,

OMB would have no reason to avoid sharing other agency

proposals with them.

The dissent says that “we have no basis for inferring” that

OMB has authority to subject informal bypass agencies to the

clearance process. Dissenting Op. at 5. The documents

themselves indicate otherwise. For example, document 1

notes that in some cases OMB “has made no effort in recent

memory to subject the [agency] to the requirements of

Circular A-19,” 2001 Jukes Mem. Attach. at 19. This

strongly suggests that there are steps OMB can take to subject

agencies to the clearance process. Moreover, at oral argument

OMB counsel repeatedly insisted that OMB can require

agencies to submit proposed legislation for clearance. For

15

example, asked whether OMB “even with respect to these

agencies not statutorily exempt will for particular pieces of

legislation exercise its review function,” counsel responded,

“[i]f it chooses that it should at a particular time, it will.”

Oral Arg. at 35:35–36:00. Counsel later reiterated that as to

proposed legislation, OMB “always [has] the power as

granted by the Executive Order, by the Circular, by the memo

of February 15, 2001, to say ‘we want to look at this,’ and [it]

can always do that.” Id. at 37:24–37:33.

Returning, then, to our analysis, we note that our

conclusion that the documents are not predominantly internal

applies to the documents in their entirety. Neither the

unelaborated list of agency names nor the summaries

describing the basis of each agency’s informal bypass

authority relate predominantly to OMB’s internal practices.

Where, as here, documents are used to affect the behavior of

other agencies, knowing the salient characteristics of agencies

that receive differential treatment is as significant to those

outside OMB as knowing the agencies’ identities. For

example, portions of the summaries explain that a particular

agency does not in fact submit materials for clearance or that

OMB has not attempted to subject a particular agency to the

clearance process. Such statements implicate the same

concerns as the list of agency names; by explaining OMB’s

policy of treating certain agencies differently, they have

significant external effects on the behavior of other agencies

and are thus not related predominantly to OMB’s internal

practices.

As applied to the summary descriptions, OMB’s

argument that the documents are predominantly internal

because they embody OMB’s “interpretations of the

views of certain agencies regarding legislative clearance

requirements,” Appellee’s Br. 12, also fails. To begin with,

16

the summaries hardly seem interpretive: they consist

primarily of quotations from agencies’ governing statutes and

statements that a given agency interprets a particular statute as

authorizing bypass, that it lacks a statutory bypass, or that it

declines to submit materials for clearance. Indeed, only one

sentence in any of the summaries even hints at an OMB view

or perspective: one agency’s de facto bypass, it says, “could

be” based on a particular section of the agency’s governing

statute. 2001 Jukes Mem. Attach. at 19. But even if such

statements represent OMB’s interpretations of other agencies’

views, they nonetheless describe possible bases for bypass

authority in which OMB acquiesces. As such, they are

themselves significant in explaining the different

requirements imposed on certain agencies.

Finally, the documents at issue here lie at the core of

what FOIA seeks to expose to public scrutiny. They explain

how a powerful agency performing a central role in the

functioning of the federal government carries out its

responsibilities and interacts with other government agencies.

As we have explained, “the strong policy of the FOIA [is] that

the public is entitled to know what its government is doing

and why.” Coastal States Gas Corp. v. Dep’t of Energy, 617

F.2d 854, 868 (D.C. Cir. 1980). Where, as here, agency

documents have significant external effects on other

government agencies, they are not “predominantly internal”

within the meaning of Exemption 2.

Because the documents Public Citizen seeks are not

related predominantly to OMB’s internal practices, we have

no need to decide whether they meet the high 2 exemption’s

second element—that their release would significantly risk

circumvention of the law. See Crooker, 670 F.2d at 1075

(reiterating that the prosecutorial guidelines in Jordan would

be subject to disclosure because “even assuming that the

17

guidelines . . . may aid some individuals in evading the law,

[they] are not ‘predominantly internal’”). We thus turn to

OMB’s alternative claim that the documents are covered by

Exemption 5.

Exemption 5

Exemption 5 allows agencies to withhold documents that

would be protected from disclosure in litigation under one of

the recognized evidentiary or discovery privileges, such as the

attorney-client privilege. Coastal States, 617 F.2d at 862.

Here the privilege at stake is the deliberative process

privilege, which

serves to assure that subordinates within an agency

will feel free to provide the decisionmaker with their

uninhibited opinions and recommendations without

fear of later being subject to public ridicule or

criticism; to protect against premature disclosure of

proposed policies before they have been finally

formulated or adopted; and to protect against

confusing the issues and misleading the public by

dissemination of documents suggesting reasons and

rationales for a course of action which were not in

fact the ultimate reasons for the agency’s action.

Id. at 866. Thus, as embodied in Exemption 5, the privilege

protects documents that are both “predecisional” and

“deliberative.” Id. “We deem a document predecisional if it

was generated before the adoption of an agency policy and

deliberative if it reflects the give-and-take of the consultative

process.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151

(D.C. Cir. 2006) (internal quotation marks omitted). OMB

claims that the documents at issue here are all predecisional

and deliberative and thus covered by Exemption 5.

18

We begin with OMB’s response to Public Citizen’s

argument that even if the documents were at one time

predecisional and deliberative, OMB’s informal adoption and

application of the documents as its “working law” render

them final and thus subject to disclosure. See Coastal States,

617 F.2d at 866 (explaining that “even if the document is pre-

decisional at the time it is prepared, it can lose that status if it

is adopted, formally or informally, as the agency position on

an issue”). OMB claims that because of its “unique role and

position in the Executive Branch” as advisor to the President,

Appellee’s Br. 45, its documents are “‘by their nature’”

predecisional and deliberative and cannot constitute

“‘working law,’” id. at 44 (quoting United States v. Philip

Morris USA Inc., 218 F.R.D. 312, 321 (D.D.C. 2003)).

OMB’s advisory role may well mean that some—indeed,

even many—documents it produces are predecisional in

nature, but the blanket application of Exemption 5 it seeks

goes too far: carried to its logical conclusion, the argument

would exempt virtually all OMB documents from disclosure.

We have no doubt that OMB frequently produces documents

that contain recommendations, but such documents are hardly

contagious, spreading their predecisional and deliberative

nature to all other documents in their vicinity. Documents

qualify as predecisional and deliberative only if they “reflect[]

advisory opinions, recommendations, and deliberations

comprising part of a process by which governmental decisions

and policies are formulated, [or] the personal opinions of the

writer prior to the agency’s adoption of a policy.” Taxation

With Representation Fund v. IRS, 646 F.2d 666, 677 (D.C.

Cir. 1981). To the extent the documents at issue in this case

neither make recommendations for policy change nor reflect

internal deliberations on the advisability of any particular

course of action, they are not predecisional and deliberative

despite having been produced by an agency that generally has

an advisory role. And although it might well be difficult to

19

determine at what point OMB’s recommendations about the

suitability of a particular piece of proposed legislation have

been sufficiently adopted to qualify as “working law,” we

face no such difficulty here. Documents reflecting OMB’s

formal or informal policy on how it carries out its

responsibilities fit comfortably within the working law

framework.

OMB argues that the documents Public Citizen seeks are

in fact predecisional because OMB “consider[s]” the

documents “during the inherently deliberative process of

legislative clearance.” Appellee’s Br. 41. But we agree with

Public Citizen that an agency’s application of a policy to

guide further decision-making does not render the policy itself

predecisional. For example, in Tax Analysts v. IRS, we held

that IRS documents containing legal advice to field offices

were not predecisional because even though they “may

precede the field office’s decision in a particular taxpayer’s

case, they do not precede the decision regarding the agency’s

legal position.” 117 F.3d 607, 617 (D.C. Cir. 1997).

Similarly, in Jordan, where we held that the prosecutorial

guidelines were neither predecisional nor deliberative, we

reasoned that even though the guidelines “may not be

absolutely binding on each Assistant,” they “do express the

settled and established policy of the U.S. Attorney’s Office.”

591 F.2d at 774. Here the documents list the agencies to

which OMB refers materials for formal comment only

after obtaining assurances of confidentiality. Absent such

assurances, OMB may well decide on a case-by-case basis

whether to request a bypass agency’s informal comments on a

particular piece of proposed legislation. Such subsequent

decisions, however, do not undermine the finality of the

existing policy, which singles out the agency for differential

treatment in the first place.

20

Urging a second basis for classifying the documents as

predecisional, OMB argues that they “serve as a starting point

for discussions within OMB concerning possible changes to

OMB’s practices.” Appellee’s Br. 35. This argument gets

OMB only so far. As Public Citizen correctly notes,

Appellant’s Reply Br. 18, whenever an agency seeks to

change a policy, it logically starts by discussing the existing

policy, and such discussions hardly render documents

explaining the existing policy predecisional. Otherwise it

would be hard to imagine any government policy document

that would be sufficiently final to qualify as non-predecisional

and thus subject to disclosure under FOIA. In any event,

Exemption 5 protects only documents that are both

predecisional and deliberative. As we explained in Jordan,

“it is not enough that a communication precede the adoption

of an agency policy.” 591 F.2d at 774. To qualify under

Exemption 5, a document must also “‘be a direct part of the

deliberative process in that it makes recommendations or

expresses opinions on legal or policy matters.’” Id. (quoting

Vaughn, 523 F.2d at 1143–44). A document that does

nothing more than explain an existing policy cannot be

considered deliberative. E.g., In re Sealed Case, 121 F.3d

729, 737 (D.C. Cir. 1997). Nor may an agency avail itself of

Exemption 5 to shield existing policy from disclosure simply

by describing the policy in a document that as a whole is

predecisional, such as a memo written in contemplation of a

change in that very policy. Only those portions of a

predecisional document that reflect the give and take of the

deliberative process may be withheld. Access Reports v.

Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991)

(explaining the difference between the predecisional

requirement and the deliberative requirement and noting that

agencies may withhold only those portions of a predecisional

document that are also deliberative). Here the documents list

agencies that “currently have” formal or informal bypass

21

authority. Significantly for our purposes, the documents

nowhere consider whether OMB should cease acquiescing in

a particular agency’s practice of bypassing OMB. Indeed,

document 2 merely lists agency names—it offers no

commentary whatsoever. Similarly, portions of documents 1

and 3 to 14 list the agencies and give the reasons for their

inclusion on the list, and as we’ve explained, the reasons

behind existing policy—such as OMB’s policy of treating

certain agencies differently—are not deliberative. To the

extent documents 1 and 3 to 14 go beyond describing and

explaining the existing policy and current state of affairs,

OMB may withhold only those portions that provide candid

or evaluative commentary.

Moreover, agencies must disclose those portions of

predecisional and deliberative documents that contain factual

information that does not “inevitably reveal the government’s

deliberations.” In re Sealed Case, 121 F.3d at 737. The list

of bypass agencies consists of just such factual information,

i.e., the names of agencies that, in fact, generally decline to

submit materials for OMB clearance. While OMB may be

right that such a list does not establish the “fact” that an

agency actually possesses undisputed legal authority to

bypass OMB, it does represent a “fact” about the agency’s

behavior—specifically, that the agency does or does not

submit materials to OMB. As OMB counsel explained, some

agencies that had initially bypassed OMB without statutory

authority later asked OMB to review their submissions, and as

a result “they’ve been removed from the list.” Oral Arg. at

42:20–42:38. Exemption 5 provides no protection for such

factual information.

Because Exemption 5 covers only those portions of the

documents that are both predecisional and deliberative, OMB

has failed to meet its burden of demonstrating that Exemption

22

5 covers the documents in their entirety. Accordingly, OMB

must release all responsive portions of document 2, as well as

all portions of documents 1 and 3 to 14 that are not both

predecisional and deliberative. Although the district court

determined that all segregable portions of the documents had

been released, Pub. Citizen, Inc., 520 F. Supp. 2d at 157–58,

it evaluated the documents only under Exemption 2, which we

have concluded does not apply, see supra at 13. The

Exemption 5 segregability analysis requires a different

inquiry, one that focuses on the predecisional and deliberative

nature of the documents’ content. As to documents 1 and 3 to

14, then, we think it best for the district court to conduct this

inquiry in the first instance.

III.

For the foregoing reasons, we reverse in part and remand

for the district court to order the release of document 2; to

determine consistent with this opinion whether certain limited

portions of documents 1 and 3 to 14 are predecisional and

sufficiently reflect the give and take of the deliberative

process to warrant continued redaction; and to order the

release of those documents with appropriate redaction if

necessary.

So ordered.

WILLIAMS, Senior Circuit Judge, concurring in part and

dissenting in part: This case concerns fourteen documents

relating to the role of the Office of Management and Budget

(“OMB”) in clearing executive (and “independent”) agencies’

legislative and budget proposals to Congress. The appellant,

Public Citizen, contends that the Freedom of Information Act

(“FOIA”) requires OMB to disclose these documents in their

entirety. OMB argues that the undisclosed portions of the

documents are exempt from disclosure under FOIA

Exemptions 2 and 5. The district court granted summary

judgment to OMB on the basis of Exemption 2. The majority

today finds Exemption 2 inapplicable, and remands for further

consideration of Exemption 5. I believe that OMB established

the first of two requirements for withholding under Exemption

2, and that the case should be remanded for clarification as to

the second requirement. I concur, however, in the court’s

disposition of OMB’s assertion of Exemption 5.

* * *

Exemption 2 covers documents that are “related solely to

the internal personnel rules and practices of an agency.” 5

U.S.C. § 552(b)(2). We have long interpreted the exemption

more broadly than its language immediately suggests. As

currently understood, the exemption’s threshold requirement

is that the documents must be “used for predominantly

internal purposes.” Schiller v. NLRB, 964 F.2d 1205, 1207

(D.C. Cir. 1992) (quoting Crooker v. Bureau of Alcohol,

Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C. Cir. 1981)).

Documents satisfying that criterion may be withheld if they

“deal with trivial administrative matters” (the “low 2”

exemption) or if “disclosure . . . would risk circumvention of

agency statutes and regulations” (the “high 2” exemption). Id.

As the documents clearly deal with non-trivial matters, the

“high 2” exemption is the relevant one. I will discuss the two

2

requirements—predominant internality and circumvention of

law—in turn.

Predominant internality. Whether these documents are

predominantly internal depends on their content and function.

Public Citizen understandably inferred from the titles of the

documents—for example, “Agencies Exempt from the

Legislative Clearance Process”—that they contain OMB’s

policies regarding which agencies may bypass the clearance

process by which OMB reviews agency submissions to

Congress. In addition, the documents were supplied by OMB

in response to a request for records “listing agencies that may”

directly submit legislative and budget proposals to Congress

without OMB clearance. Plaintiff’s inference, nonetheless, is

a bit of an oversimplification.

First, the Assistant Director for Legislative Reference of

the OMB stated flatly in his affidavit that the documents “do

not represent or set forth OMB’s ‘official position’ (so to

speak) regarding which agencies may, or may not, submit

legislative materials directly to Congress.” Jukes Am. Decl.

at 14. See also Office of Mgmt. & Budget, Executive Office

of the President, OMB Circular No. A-19, Legislative

Coordination and Clearance (1979), posted at

http://www.whitehouse.gov/omb/circulars/a019/a019.html

(“Coverage. All executive branch agencies (as defined in

section 5b) are subject to the provisions of this Circular,

except those agencies that are specifically required by law to

transmit their legislative proposals, reports, or testimony to

the Congress without prior clearance.”).

Second, in camera examination shows that insofar as the

documents guide the conduct of OMB personnel at all, they

do so in relation not to the clearance process but to another

3

aspect of OMB’s relation to agencies. The documents contain

no instructions to OMB personnel to allow some agencies but

not others to bypass the clearance process. Documents 1 and

3-14, which are memos from the OMB’s Assistant Director

for Legislative Clearance to OMB staff, do contain other

instructions making clear the documents’ real purpose.

Specifically, the memos instruct the OMB staff not to

automatically refer material to “bypass” agencies, so as to

avoid letting the agencies forward such material to Congress.

See, e.g., Jim Jukes, Memorandum for OMB Policy Officers

and DADs [acronym unexplained] (Feb. 20, 2001) (“[The

Legislative Reference Division’s] longstanding practice is to

determine, on a case-by-case basis, whether or not to refer

material for review to a ‘bypass’ agency. . . . In general, an

OMB referral is not made to a ‘bypass’ agency unless the

agency agrees to refrain from forwarding to Congress OMB-

referred material or its response to an OMB referral.”) In

other words, to the extent that the documents had a function

beyond explaining what bypasses are and which agencies

have asserted a right to bypass, it was to instruct employees

on how those agencies should be treated in the referral

process.

The majority opinion hints that the memos contain a

policy concerning which agencies may bypass the clearance

process. It relies on Document 1’s statement that “[f]orty four

Federal agencies currently have some form of . . . ‘bypass.’”

Maj. Op. at 12 (quoting Jim Jukes, Memorandum for OMB

Policy Officers and DADs (Feb. 20, 2001)). In context,

though, it is clear that this is a statement of fact concerning

which agencies have asserted bypass authority, not an

endorsement of their claims or even a statement of OMB

assessment of or response to those claims. See Bypass

Agencies 5 (Feb. 2001) (explaining that informal bypasses are

4

asserted by several agencies without explicit authority, and

that although Circular A-19 does cover these agencies they

“generally do not comply with its provisions.”).

The panel’s next argument on this point similarly

confuses a factual statement with a policy. It relies on the

Assistant Director’s statement that the documents “seek to

summarize the currently-held internal-OMB perspectives and

views regarding which Federal agencies have a basis—in

statute or in prior agency and OMB practice—for not

submitting [materials for OMB clearance].” Jukes Am. Decl.

at 13. All this means, however, is that the documents list all

the agencies which may view themselves as exempt from the

clearance process, whether this is because of a statute, the

agency’s own prior practice, or some combination of the

agency’s practice and OMB’s response to it. Consider, for

example, Document 1’s treatment of the Federal Trade

Commission “FTC”: “The FTC has no statutory legislative

bypass but acts as if it does . . . . OMB has made no effort in

recent memory to subject the FTC to the requirements of

Circular A-19.” Bypass Agencies 19 (Feb. 2001). The

document explains why the FTC might have a “basis” in its

own practice, as well as OMB’s recent actions, to think of

itself as a bypass agency. It does not, however, endorse the

FTC’s claim to bypass authority or adopt a policy of not

attempting to get the FTC to comply with Circular A-19.

The panel further argues that if the documents really just

recorded past OMB practice—rather than setting out a policy

of OMB acquiescence in these agencies’ behavior—OMB

would not worry about sharing information with them. As my

colleagues put it, “If the listed agencies had no bypass

authority, OMB would have no reason to avoid sharing other

agency proposals with them.” Maj. Op. at 14. Again the

5

analysis confuses a pattern of successful agency bypass with

OMB policy. Even if OMB made every possible effort to

subject the FTC or some other informal bypass agency to

Circular A-19, it would still sensibly worry about sharing

information with that agency—unless and until its efforts

proved successful. The panel’s theory simply assumes that

OMB has enforcement power; but we have no basis for

inferring such power’s existence.

In support of its view the panel invokes a couple of

passages from oral argument. I hesitate to draw serious

conclusions from a muddled colloquy in which the judges

more than once declared that they could not understand

counsel’s answers. Oral Arg. at 35:30-35:35; id at 36:05-

36:15. As the panel’s conviction that the materials disclose

“secret law” turns on an understanding of OMB enforcement

power, we should at the very least remand for a determination

that such power exists rather than rely on inferences from

highly ambiguous statements at oral argument by a counsel to

whom our questions appeared extremely unclear.

In any event, counsel’s answers fall far short of a clear

claim to effective power to insist that all agencies submit

proposals for OMB review before submission to Congress.

The statement of OMB counsel at oral argument that OMB

“always [has] the power as granted by the Executive Order, by

the Circular, by the memo of February 15, 2001 to say ‘we

want to look at this,’ and [it] can always do that,” see Maj.

Op. at 15 (quoting Oral Arg. at 37:24-37:33), does nothing to

establish enforcement power. Quite literally, counsel

observed that OMB had the power to “say” to agencies that

they should turn over the specified type of document. It

brings to mind Hotspur’s famous rejoinder to Glendower:

6

Glendower: I can call spirits from the vasty deep.

Hotspur: Why, so can I, or so can any man; But will they

come when you do call for them?

At most it suggests that OMB has a legal right to require

certain agencies to participate in the clearance process, quite

distinct from an effective enforcement power.

The majority also points to an exchange in which a judge

asked counsel whether OMB “even with respect to those

agencies not statutorily exempt will for particular pieces of

legislation exercise its review function,” and counsel

responded, “if it chooses that it should at a particular time, it

will.” Maj. Op. at 15 (quoting Oral Arg. at 35:35-36:00).

Counsel was primarily asserting that OMB can’t make “any

decisions about agencies and their ability to go around OMB,”

Oral Arg. at 34:30-34:38. But it does, he argued, have some

discretion with regard to specific legislative proposals: “It can

make a decision, for example, when a [proposed?] statute

comes to it, that this particular statute does not need to go

through a review process.” Id. at 34:59-35:05. Counsel’s

answer to the question, then, merely reaffirms his point that

OMB has discretion over “particular pieces of legislation.” It

does not establish that agencies would comply, and it certainly

does not establish that pieces of legislation would “come to

[OMB]” before going to Congress. Indeed, elsewhere counsel

noted that OMB frequently does not even know about

agencies’ legislative proposals until they are introduced in

Congress. Oral Arg. at 36:21-36:33. In short, the OMB’s

own description of the documents is fair: the documents

“serve as the OMB’s ‘intelligence’ on other agencies’ views

regarding the nature of their obligations in the legislative

clearance process” and they are used to help OMB personnel

7

“determine the nature of their interactions” with those

agencies. Appellee’s Br. at 13.

We must evaluate these documents under the

predominant internality test established in Crooker v. Bureau

of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C.

Cir. 1981), read in the light of the Crooker en banc court’s

preservation of the holding of an earlier case, Jordan v. DOJ,

591 F.2d 753, 763 (D.C. Cir. 1978). In Jordan we had held

that the Justice Department’s prosecutorial guidelines did not

fall within the scope of Exemption 2. Crooker rejected much

of Jordan’s legal analysis, 670 F.2d at 1073, and held that an

agent’s training manual of the Bureau of Alcohol, Tobacco &

Firearms (BATF), governing law enforcement investigation

techniques, was covered by Exemption 2 because it was

predominantly internal and its disclosure significantly risked

circumvention of the law, id. at 1053. Crooker said, however,

that its new approach would not have changed the result in

Jordan because nothing in the Jordan opinion suggested that

disclosure would risk circumvention of the law and, in any

event, the documents at issue were not predominantly internal.

Id. at 1075.

Crooker conceded that the investigatory technique

policies described in the withheld portions of the BATF

manual had an effect on the public at large, as would almost

any agency policy. Id. at 1073. The court found “critical,”

however, that “the manual is used for predominantly internal

purposes; it is designed to establish rules and practices for

agency personnel . . . ; it involves no ‘secret law’ of the

agency . . . .” Id. The prosecutorial guidelines in Jordan, on

the other hand, were “a source of ‘secret law,’ as important to

the regulation of public behavior as if they had been codified.”

Id. at 1075.

8

As applied to documents by which an agency guides its

personnel in conduct affecting others, the distinction our cases

draw seems a bit metaphysical, i.e., difficult to operationalize.

As to any such document, it is possible to assert, with equal

plausibility, that its “primary” purpose is to guide the

agency’s employees or, by guiding the employees’ conduct, to

affect the outside world. The puzzle is highlighted by Schiller

v. NLRB, 964 F.2d 1208 (1992), where we confronted

documents concerning the NLRB’s litigation strategies with

reference to the Equal Access to Justice Act. Of course the

“prosecutorial strategies” at issue in Jordan might be viewed

as simply a subset of “litigation strategies.” Yet, while the

NLRB strategies clearly affected outsiders—and were

presumably intended to influence the other parties’

behavior—we said that they merely “establish[ed] rules and

practices for agency personnel, and Mr. Schiller has given us

no reason to think that the documents contain any ‘secret

law.’” Id. at 1207. Accordingly we found them

predominantly internal. Similarly, in Nat’l Treasury

Employees Union v. U.S. Customs Serv. (“NTEU”), 802 F.2d

525, 531 (D.C. Cir. 1986), we classified statements of criteria

for agency employment as predominantly internal (a

conclusion indirectly bolstered, of course, by the documents’

clearly relating to “personnel”).

Must we then throw up our hands and arbitrarily choose

one of two contradictory assertions? I think not. Two

features may usefully distinguish Jordan from the three later

cases. As we described Jordan in Crooker, the strategies we

characterized as secret law were “as important to the

regulation of public behavior as if they had been codified.”

670 F.2d at 1075. To the extent that the prosecutorial

guidelines were the equivalent of flat-out no-prosecution

rules, they switched the conduct in question from unlawful to

9

de facto lawful, as would, for example, a clear determination

not to prosecute marijuana offenses. Thus they (1) impacted

primary conduct and, as we understood them, (2) they did so

unequivocally (“as if they had been codified”). By contrast,

the investigative techniques in Crooker, the litigation

strategies in Schiller, and the employment criteria in NTEU

appear to have been aimed at peripheral activity: in Crooker at

parties’ concealment strategies; in Schiller at their behavior in

agency adjudications; in NTEU at their role as job applicants.

(Of course if persons dedicated to a career with the U.S.

Customs were fully informed about the documents withheld in

NTEU, they might mold their career paths to meet its interests;

but such an effect seems remote enough to justify our having

viewed the documents as predominantly internal.)

At bottom, the policy expressed in the documents here is

no more than a set of instructions to agency staff on how to

bargain with other agencies on an issue much less connected

to their primary conduct than submission to OMB approval of

their legislative or budget proposals, to wit, the dissemination

of information. See Jukes Memorandum (Feb. 20, 2001).

This external effect seems about as remote from the public’s

primary conduct as one can imagine. Nor do these documents

regulate the primary conduct of other agencies (assuming for

the moment that doing so would bring them within the scope

of Jordan); they deal only with the agencies’ horse-trading

with OMB on issues of bureaucratic information exchange—

the referral process. The panel characterizes that process as “a

key part of the legislative clearance process.” Maj. Op. at 13.

But OMB’s referral leverage strategies seem to stand in

relation to the basic clearance process in much the way the

criminal investigative procedures, administrative litigation

strategies, and agency employment criteria at issue in

Crooker, Schiller and NTEU relate to criminal law

10

enforcement, administrative policy, and agency management

of personnel, i.e., so peripherally to the affected subjects’

primary conduct that they are properly seen as “predominantly

internal.”

Second, the documents are not at all comparable to any

kind of codification; within their mandate, one can easily

imagine temporary, partial accommodations. While the

bargaining strategy may well force other agencies to make a

choice, it is a far cry from the decriminalization of a whole

class of conduct.

The majority summarizes its view with the declaration

that where “agency documents have significant external

effects on other government agencies, we cannot deem them

‘predominantly internal.’” Id. at 16. I note that this is the first

case ever in which a document’s “external effects” operate in

the first instance on other federal agencies. I do not regard

that fact as dispositive: if the initial impact fell on another

government agency in such a way as to have clearly defined

effects on the public’s primary conduct, it would not make

sense to view the documents as “predominantly internal.”

And quite possibly an agency policy seriously impacting other

agencies’ primary conduct would fail the internality test.

Neither effect is present here. The case fits comfortably

within Crooker, Schiller and NTEU.

Circumvention of the law. The second prong of the “high

2” exemption is met if “disclosure would significantly risk

circumvention of agency regulations or statutes.” NTEU, 802

F.2d at 528. NTEU illustrates how we apply the criterion.

There we observed that because the agency’s evaluation

procedures were supposed to measure “actual experience and

proven ability,” in theory “advance knowledge of their content

11

should not affect the rating of the candidates.” Id. at 529.

This conclusion would hold, however, only “if all applicants

can be depended upon to be meticulously correct in describing

their past experience and their quantified or quantifiable

abilities.” Id. In fact, affidavits from agency individuals

suggested that applicants could embellish many aspects of

their applications “in a manner that is not strictly fraudulent,

or that cannot be proven to be fraudulent.” Id. In light of

these affidavits, we found “that release of the plans creates a

significant risk that the Service’s applicant evaluation

program will be seriously compromised.” Id.

Here OMB expresses the concern that if other agencies

“knew OMB’s beliefs concerning their views or the views of

sister agencies, they could use this information to impede and

frustrate legislative clearance requirements,” Appellee’s Br. at

26, thus circumventing the legislative clearance process set

out in Circular A-19. Thus the claim does not appear to relate

to the documents’ normative instructions on referral of

documents to bypass agencies. As in NTEU, in theory the

information in the documents should not affect whether or not

an agency is subject to the clearance process. In practice,

however, this may hold only if agencies approach the process

with meticulous integrity. It is not fanciful to imagine that

they might change their behavior in response to the

information. Indeed, the majority believes that the

explanation of OMB’s policies has “significant external

effects on the behavior of other agencies.” Maj. Op. at 15. To

the extent that agencies are willing to game the system, the

information in these documents could help them do so.

OMB’s submissions on this issue, however, are on the

vague side. The Assistant Director for Legislative Reference

of the OMB said in his affidavit that disclosure of these

12

materials “would reveal aspects of OMB’s evaluative process

concerning submission of agencies’ documents to Congress

without OMB’s clearance and the manner in which relevant

opinions and recommendations were formed.” Jukes Decl. at

11. But this statement, rather than being addressed directly to

circumvention, seems simply to assert the raw truism that

forced disclosure will reveal something about OMB’s thinking

process. The issue, though, is how agencies might use those

insights to undermine OMB’s efforts to assure compliance.

The record on that problem being too opaque for a well-

founded decision, I would remand to the district court for

further proceedings. See Sussman v. United States Marshal

Serv., 494 F.3d 1106, 1113 (D.C. Cir. 2007).

* * *

My colleagues argue that the documents at issue in this

case “lie at the core of what FOIA seeks to expose to public

scrutiny.” Maj. Op. at 16. Disclosure is, of course, FOIA’s

primary policy. See Crooker, 670 F.2d at 1074. But as

Crooker reminds us, “it will not do for us to act on the

primary purpose of the statute to the exclusion of all other

express congressional concerns,” such as “preserving the

effective operation of governmental agencies.” Id. Here, the

effectiveness potentially at stake is the President’s ability to

corral the government’s far flung agencies, many if not all of

them beholden to interest groups whose agenda may not track

the President’s, into support of a common, coherent program.

A fair application of the test developed by Crooker

demonstrates that the documents are predominantly internal.

If further proceedings establish that their disclosure risks

circumvention of the law, as seems quite plausible, OMB

should be able to protect them. I would therefore remand for

a better grounded decision on the circumvention issue.