Mead Data Central, Inc. v. United States Department of the Air Force

McGOWAN, Circuit Judge,

dissenting:

Since I find no significant fault with the District Court’s disposition of this case, I would affirm the judgment under review. The record shows that the Air Force took seriously the FOIA request and voluntarily supplied a very substantial amount of the information requested. In the District Court proceeding, it also provided what seemed to the district judge — and now seems to me — detailed and informative descriptions of the nature and content of the seven documents in issue, which strongly suggest the availability of the claimed exemption. The district judge took the additional precaution, expressly envisaged by the statute, of examining those documents in camera. Under these circumstances I do not think this court on appellate review is warranted in questioning the result reached unless it plainly appears that he was proceeding on some erroneous legal assumptions — and none are visable to me. Though I am in essential agreement with the views expressed in the District Court’s memorandum and order, I venture a comment on certain portions of the panel’s opinion. 1

First, with respect to the attorney-client privilege, I have grave doubts about some of the assumptions which seem to form the foundation of the majority’s position. The majority apparently believes that, because West was privy to the course of contract negotiations between itself and the Air Force, the attorney-client privilege cannot apply to legal opinions rendered by Air Force legal officers to the service’s contracting and other supervisory personnel. As I understand it, the logic proceeds as follows:

a) Only confidential communications can be covered by the attorney-client privilege.

*264 b) Legal opinions rendered by counsel on the basis of information provided by a client can be privileged only if disclosure would tend to reveal the underlying information, and that information was provided in confidence.

c) West knew the details of its contract negotiations with the Air Force.

d) Therefore, the information provided to Air Force counsel was not confidential, and the resulting legal opinions are not privileged.

Adoption of this position would go a long way toward eliminating the attorney-client privilege altogether. In the vast majority of cases, attorney-client discussions concern the client’s dealings or relationship with one or more third parties. The mere fact that those third parties are aware of the factual details of their interaction with the client cannot automatically defeat a claim of confidentiality asserted in connection with the client’s recounting of that interaction to his attorney. If it could, legal opinions based in part on a client’s version of prior negotiations with third parties would always be outside the scope of the privilege.

I think the majority errs in assigning such crucial importance to West’s knowledge in this case. The key point is not whether West is familiar with the course of negotiations between the parties, but whether the Air Force’s communication with its legal counsel was confidential, i. e., whether the Air Force legitimately expected that its summary of past events to its counsel would remain undisclosed. I do not see why it should not have had that expectation. There is no indication that West or any other third person was privy to the communications between the Air Force and its attorneys. There is no indication that the Air Force publicized, intended to publicize, or expected its attorneys to publicize the substance of those communications to anyone outside the service. That West was aware of some of the facts reported to the Air Force lawyers seems to me largely irrelevant.

Secondly, I think the majority has taken an unnecessarily restrictive view of what constitutes the deliberative process. The opinion states that documents revealing “internal self-evaluation” of contract negotiations would be comprehended within the deliberative process privilege, but information about the actual progress of negotiations with a third party would not. This distinction seems to be untenable. Even a bare recitation of the offers and counter-offers between West and the Air Force cannot help but reflect internal agency decisions and negotiation strategy. Offers made in the course of contract negotiations do not inevitably represent final agency decisions, simply by virtue of the fact that such offers were made to private parties during the bargaining process. The preferable view, I think, is that final action occurs only when the agency definitively determines whether or not to enter into a contract. It is entirely possible, for example, that a particular contract offer was made to West in the full expectation that it would in all likelihood be refused, but would nevertheless lay the groundwork for a later, and substantially altered, proposal.

Finally, though I have no quarrel with the more detailed reporting on segregability which the majority would require from agencies generally, in this case I believe the majority has identified for segregation and disclosure certain matters which need not be segregated, and disclosed. To the extent the court’s opinion underestimates the coverage of the attorney-client and deliberative process privileges, it correspondingly overestimates the amount of non-exempt material in the seven contested documents which must be separated and released.

. The District Court may have erred if it assumed that, in order to justify a refusal to release particular documents, the Air Force was obligated to show that “their disclosure would in fact be harmful to future deliberations and contract negotiations.” Recently, the Supreme Court had occasion to discuss FOIA’s fifth exemption in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 , 95 S.Ct. 1504 , 44 L.Ed.2d 29 (1975). In the course of its opinion, the Court cited with approval Justice Reed’s comments on privileged government documents in Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939 , 141 Ct.Cl. 38 (1958).

So far as the disclosure of confidential intra-agency advisory opinions is concerned, we conclude that they belong to that class of governmental documents that are privileged from inspection as against public interest but not absolutely. It is necessary therefore to consider the circumstances around the demand for this document in order to determine whether or not its production is injurious to the consultative functions of government that the privilege of non-disclosure protects.

At 946 (footnote omitted).

Of course, the Court of Claims opinion in which these remarks appeared was written long before the passage of FOIA. In quoting Justice Reed’s statement, the Supreme Court did not focus on the question of whether an individualized showing of potential harm to future government deliberations is a prerequisite to successful invocation of FOIA’s fifth exemption. Arguably at least, by its enactment of the fifth exemption, Congress intended to make such a particularized showing unnecessary. The exemption may create a statutory presumption (whether conclusive or rebuttable we do not, and need not, say on this record) to the effect that disclosure of nondiscoverable intra-agency memoranda will harm internal government consultation and decision-making. If this interpretation is correct, it would render superfluous the District Court’s specific finding that release of the documents here at issue would harm future government contract negotiations.

In this case, as the majority has indicated, the Air Force’s own regulations provide that even records exempt from mandatory disclosure will be released unless it is “determined that a significant and legitimate Government purpose would be served by exercising the exemption.” 32 C.F.R. § 806.23 (1976). The Air Force found that such a purpose would be served by a refusal to disclose the seven documents sought by appellant. Like the majority, I cannot say that this finding constituted an abuse of discretion. And, given its views on the likelihood of future harm, the District Court surely would have ruled similarly, if it had addressed the question in precisely this form.