# Sidney M. Wolfe, M.D. v. Department of Health & Human Services

> Court of Appeals for the D.C. Circuit · July 2, 1987 · 815 F.2d 1527

URL: https://www.frixlaw.com/law-library/cases/9476013

## Case

- **Full name:** Sidney M. WOLFE, M.D., Et Al. v. DEPARTMENT OF HEALTH & HUMAN SERVICES, Appellant
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** July 2, 1987
- **Citations:** 815 F.2d 1527; 259 U.S. App. D.C. 326
- **Precedential status:** Published
- **Opinion:** Dissent by Bork
- **Judges:** Bork, Robinson, Wright
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BORK, Circuit Judge,
dissenting:
The majority today requires disclosure under the Freedom of Information Act (“FOIA”) by the Department of Health and Human Services (“HHS”) of its Regulations Log. The Log discloses that proposals have been made, and accepted or rejected at various levels of review, to regulate various subject matters within the jurisdiction of the Food and Drug Administration (“FDA”). These proposals are pre-deci-sional recommendations and hence clearly insulated from disclosure by Exemption 5 of the FOIA. The majority reasons, however, that making public the Regulations Log discloses agency recommendations at a broad enough level of generality to render them “insufficiently ‘deliberative’ to claim the protection” of the FOIA’s Exemption 5. Maj. op. at 1532. Because Exemption 5 protects from disclosure all pre-decisional recommendations, and because today’s ruling will significantly impair the intended purposes of that exemption, I cannot accept the majority’s conclusion.
I.
When a proposal to regulate is fully formulated it is published by the agency for notice and comment. At that stage the public learns what is proposed and why. Similarly, when, after the comments have been considered, a final rule is adopted or rejected, the public is fully informed about what the agency has done and why it has done it. The majority holds that plaintiffs are entitled under the FOIA to learn more about the deliberative process that precedes these stages.
The Regulations Log maintained by HHS lists by title all regulatory actions proposed by the FDA, the date HHS received the proposal from the FDA, and, if HHS approves the proposal, the date it was transmitted to the Office of Management and Budget (“OMB”). Plaintiffs state that they already know the identity of important regulations and other FDA projects under consideration because “these matters are generally known to those with an interest in the FDA.” Brief of Appellees at 3. In addition, as plaintiffs point out, the FDA publishes a semi-annual Regulatory Agenda that lists all current and projected rulemakings being considered by the FDA, all existing FDA regulations presently under review, and all actions that have been completed by the FDA within the prior six months. Id. Thus, if the Regulations Log is made public and shows a transmittal from the FDA to HHS, it is known that the FDA has proposed to regulate a particular subject, and if no transmittal is shown, it is known that the FDA has decided not to recommend such regulation or not to recommend it yet. If no transmittal to OMB is shown, HHS is known to have disapproved the FDA’s proposal. If a transmittal is shown but no regulation is put out for notice and comment, OMB is known to have disapproved the regulatory proposal.
The fact of forwarding is, in each instance, therefore, the functional equivalent of an intra-agency or inter-agency memorandum that states, “We recommend that a regulation on this [named] subject matter be promulgated.” The fact of a failure to forward from the FDA to HHS, or from HHS to OMB is the equivalent of a memorandum from HHS to FDA that states, “We disapprove of your recommendation that a particular regulation on this [named] subject matter be promulgated.” Such memoranda would seem protected by Ex *1535 emption 5, but the information sought from the Log discloses more. The Log will show the timing of the deliberative process and it will show the agency in which the deliberative process is at the moment going forward. The Log also shows, but plaintiffs do not seek, the offices and persons within HHS to which a proposal has been routed. Given plaintiffs’ intimate knowledge of how regulation in these areas is conducted, however, the Log will disclose the office, and probably the persons, within the agency conducting the deliberative process at any given time. By the same token, the failure to forward will disclose, to those who follow the process as closely as plaintiffs do, the office or person responsible for rejecting a proposal to regulate.
The applicability of Exemption 5 to the material sought must be determined by considering the impact of disclosure upon the policies served by the exemption. Exemption 5 permits withholding of documents whose disclosure would harm the deliberative process of agencies. Montrose Chem. Corp. v. Train, 491 F.2d 63 , 71 (D.C.Cir.1974); accord Mead Data Cent., Inc. v. Department of the Air Force, 566 F.2d 242, 256 (D.C.Cir.1977). It seems obvious that the disclosure required here will do just that.
The decisions in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 , 95 S.Ct. 1504 , 44 L.Ed.2d 29 (1975), Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 , 95 S.Ct. 1491 , 44 L.Ed.2d 57 (1975), and Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir.1980), show when recommendations are considered pre-decisional so that their disclosure would harm the deliberative process. These cases support, I would say require, the application of Exemption 5 to the Regulations Log.
In Sears, Roebuck the documents sought were memoranda by the General Counsel of the NLRB explaining his decisions to file or not to file complaints and initiate litigation before the Board. The General Counsel’s decisions not to file are final and unreviewable. The Court held that memo-randa explaining decisions not to file complaints were “final opinions” made in the adjudication of a case and fell outside Exemption 5. “[I]t is difficult to see how the quality of a decision will be affected by communications with respect to the decision occurring after the decision is finally reached; and therefore equally difficult to see how the quality of the decision will be affected by forced disclosure of such communications, as long as prior communications and the ingredients of the decision-making process are not disclosed.” 421 U.S. at 151, 95 S.Ct. at 1517 (emphasis added). By contrast, memoranda directing the filing of complaints were protected by Exemption 5 because, among other things, “the public’s interest in disclosure is substantially reduced by the fact ... that the basis for the General Counsel’s legal decision will come out in the course of litigation before the Board; and that the ‘law’ with respect to these cases will ultimately be made not by the General Counsel but by the Board or the courts.” 1 Id. at 160, 95 S.Ct. at 1521. So it is in this case. The substance of the proposed regulation and the rationale underlying it will be made public when the proposal is published, comments are received, and the final regulation is promulgated. There is no reason whatever to force disclosure of information about pre-decisional recommendations. 1
2
*1536 Grumman made the same distinction in holding that only Renegotiation Board decisions as to the existence of excess profits were final decisions and that reports from regional boards and divisions, being pre-de-cisional, were protected from disclosure by Exemption 5. In this case, only proposed and final rules, which do become public, are in any sense final decisions. The Regulations Log merely discloses information about pre-decisional recommendations.
It is impossible to see why the majority relies upon this court’s decision in Coastal States. The court there applied the distinctions laid down in Sears, Roebuck and Grumman and stated that, in determining Exemption 5’s application, courts ask “whether the document is ‘predecisional’— whether it was generated before the adoption of an agency policy — and whether the document is ‘deliberative’ — whether it reflects the give-and-take of the consultative process.” 617 F.2d at 866 (emphasis in original). The Regulations Log fits both of those criteria: it is clearly pre-decisional and it reflects, if it does not entirely disclose, the outcomes of the consultative process at each stage of that process. The Coastal States opinion stated, “We also ask whether the document is recommenda-tory in nature ... [,]” id., and “a document from a subordinate to a superior official is more likely to be predecisional.” Id. at 868 . The proposals reflected in the Log are recommendatory in nature and are from subordinate units to superior units.
The plaintiff in Coastal States sought memoranda from regional counsel of the Department of Energy to auditors in field offices. The memoranda responded to requests for interpretations of regulations as they applied to real or hypothetical situations related to the audits of particular firms. The court explained the decision not to apply Exemption 5: “No ‘decision’ is being made or ‘policy’ being considered; rather the documents discuss established policies and decisions — the agency regulations — in the light of a specific, and often hypothetical, fact pattern.” 617 F.2d at 868 . (emphasis in original). “[I]n fact, these opinions were routinely used by agency staff as guidance in conducting their audits, and were retained and referred to as precedent. If this occurs, the agency has promulgated a body of secret law which it is actually applying in its dealings with the public but which it is attempting to protect behind a label.” Id. at 869 . In contrast, the proposals shown by the Regulations Log are not used as guidance, in no sense constitute precedent, and are certainly not “secret law.”
The majority mentions none of these crucial aspects of the reasoning of Coastal States, aspects which require the opposite result in today’s case. The opinion’s reliance upon Coastal States is highly selective. For example, the majority quotes the Coastal States court to show that the deliberative process privilege is meant to prevent the confusing dissemination of repudiated agency “reasons and rationales.” Maj. op. at 1582 (quoting 617 F.2d at 866 ). The majority fails to quote the preceding clause of that same sentence, which sets out another of the privilege’s “number of purposes” — “to protect against premature disclosure of proposed policies before they have been finally formulated or adopted.” 617 F.2d at 866 . The majority has simply decided to read the protection of agency recommendations out of the case law construing Exemption 5’s deliberative process privilege. The truth is that nothing in Coastal States — and nothing anywhere else in the case law — supports the majority’s narrowing of Exemption 5.
It is well to be clear about precisely what the majority has done. It has created a new law of Exemption 5 to the effect that, although the full text of pre-decisional recommendations may not be disclosed by judicial compulsion, some lesser amount of *1537 information about predecisional recommendations may be forced out of the agency. This is not merely unprecedented law, it is very bad law, and it is bad for more than one reason. The decision to regulate in a particular area often embodies a sensitive and important policy judgment, sometimes more sensitive and important than the later decisions concerning the precise extent and nature of the regulation. Decisions to require labeling of cigarettes or to regulate children’s television programming come to mind as examples. We do not and cannot know that the FDA regulations entered in the Log are not often of this character. The majority’s sweeping presumption that disclosure of a decision to extend regulation to a particular area is not indicative of any policy is entirely unsupportable.
That the Log’s entries do not themselves recommend but merely memorialize recommendations no more strips the Log of protection than would a court sheet’s memorializing a panel’s tentative decision by stating “Reverse; I will write.” 3 See Mead Data Cent., 566 F.2d at 257 (“to exempt documents in which staff recommended certain action ... but require disclosure of documents which only ‘report’ what those recommendations ... are” is “to exalt form over substance”).
Finally, the majority draws a line that will be impossible for courts to administer and that is certain to lead them to cut deeply into legitimate Exemption 5 protections. The decision that the recommendations the Log reveals are too “general” to deserve Exemption 5 protection requires courts to decide how much information about pre-decisional documents, short of the full document, may be disclosed without harm to the agency’s deliberative process. This will involve courts in a continual process of estimating or, more accurately, guessing about the adverse effect of the disclosure of a great variety of combinations of pieces of information upon the purposes of Exemption 5. These purposes include: protection of subordinates’ willingness to provide decisionmakers with frank opinions and recommendations; prevention of the premature disclosure of proposed policies before they have been finally formulated or adopted; avoidance of the confusion of issues and the possibility of misleading the public by disseminating information suggesting courses of action that are not ultimately taken; and precluding the publication of reasons for actions which are not in fact the ultimate reasons for the agency’s action. See Coastal States, 617 F.2d at 866 . There is no way to avoid these very considerable harms, or to avoid a waste of judicial time and energy, if the majority’s new rule becomes law. The purposes of Exemption 5 can be adequately served only if we hold that information concerning pre-decisional recommendations, as well as the full text of such recommendations, is protected from forced disclosure.
II.
I add some comments on the majority’s responses to the government’s particular arguments. The majority first rejects the argument that attribution of delay from disclosure of the Log will result in pressures on agency decisionmakers, producing precipitous decisionmaking. The majority presumes that since “many” individuals are involved in agency decisionmaking on any given topic, none will be affected by an attribution of delay to the agency. It is not apparent that “many” persons are involved in each decision to regulate, or that *1538 the presence of “many” will sufficiently dilute the blame to prevent ill effects on decisionmaking. Furthermore, as noted above, in many instances the identity of each of these persons will be obvious to plaintiffs and others familiar with the agency in question. The majority finally asserts that in any event “the public has a right to know the source of decisional delay.” Maj. op. at 1531. Until now, I was unaware that the FOIA created such a right. The statute certainly says nothing about it, and reading such a right into the FOIA directly conflicts with the protection of the deliberative process provided by the FOIA’s Exemption 5. “Decisional delay” is not a fact but an opinion; what plaintiffs or others may view as delay, by persons or offices that can be identified and publicly criticized, may be caused by unexpected complications or the difficulties of weighing competing values. Thus, the majority’s new “right" will tend to produce precipitous decisionmaking and to discourage subordinates from providing their superiors with frank opinions about difficulties.
The majority responds to the government’s second argument, that disclosure of the Log will inhibit disagreements with a proposal, by claiming that “specific views” of decisionmakers will not be deterred by disclosure of a “very general disposition” of an issue. As already discussed, the majority ignores the fact that this “general disposition” and the decisionmakers’ “general” views to regulate at all are often crucially important pieces of information about pre-decisional recommendations.
The majority answers the government’s concern that the Log’s disclosure will greatly heighten agency lobbying by attempting to refute a straw-man. No one suggests that the deliberative process privilege should “isolate” agencies from “public opinion” or “silence public voices.” Maj. op. at 1532. The privilege does nothing to aid or hinder “public opinion” or “public voices.” Rather, everyone is at all times free to lobby agencies and indeed in due course will be invited to lobby by the agencies’ notice and comment procedure. The privilege instead provides agencies a space within which they need not yet invite lobbying on their still-tentative reasonings and recommendations. But as the majority’s argument implicitly acknowledges and plaintiffs in their pleadings explicitly admit, they seek access to the Log in part to issue themselves an invitation to engage in precisely this predecisional lobbying. Concern about the effect of lobbying on agencies may itself justify Exemption 5 protection. See Chemical Mfrs. Ass’n v. Consumer Prod. Safety Comm’n, 600 F.Supp. 114 (D.D.C.1984) (“there is time enough for adversary testing” when scientific study is published by agency; held, Exemption 5 protects from disclosure); see also Tax Reform Research Group v. IRS, 419 F.Supp. 415, 423-24 (D.D.C.1976) (names of IRS employees withheld although content of opinions disclosed; held, Exemption 5 protects names from disclosure to avoid possible media harassment).
III.
Since I find the Log protected by FOIA Exemption 5’s deliberative process privilege, I would not reach the government’s argument that a constitutional privilege protects Log entries revealing communications to and from the Office of Management and Budget. The argument was not raised below, and I am hesitant to address such a complex and important issue here in the first instance. But because the majority casually disposes of this serious issue I will briefly state my tentative views.
Although the constitutional defense to FOIA disclosure here asserted by the government is referred to as an “executive privilege,” nothing about the privilege is distinctly executive. Rather, the privilege is an attribute of the duties delegated to each of the branches by the Constitution. Neither Congress nor the courts, any more than the executive, could be constitutionally forced by a coordinate branch to reveal deliberations for which confidentiality is required. See supra note 3. The constitutional privilege in question is, therefore, more accurately viewed as a government-wide privilege of confidentiality for deliberative processes. The privilege is, of course, not made effective merely because *1539 it is invoked; particular circumstances and needs must always be considered. The issue here is whether, apart from Exemption 5, the reach of this privilege encompasses disclosure of the Log pursuant to the FOIA.
A starting point in considering this question is section 552(e) of the FOIA, which renders “the Executive Office of the President” an “agency” subject to the FOIA. 5 U.S.C. § 552 (e) (1982). If a constitutional privilege exists that exceeds the limits of the FOIA’s enumerated exemptions, this provision on its face would to that extent be unconstitutional, at least insofar as the President himself is not obviously distinct from the Executive Office of the President. Compare 5 U.S.C. § 551 (1) (1982) (APA definition of “agency” silent on both President and his Executive Office) with 5 U.S.C. § 552 (e) (FOIA definition of “agency” including Executive Office but silent on President himself); see 1 K. Davis, Administrative Law Treatise 8 (2d ed. 1978) (although on face of section 551(1) President “clearly” an APA agency, section 552(e) “clearly implies” that President not FOIA agency).
Congress in all likelihood recognized this difficulty, since it stated in the legislative history of amended section 552(e) that “Executive Office of the President” excludes “ ‘the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President,’ ” Rushforth v. Council of Economic Advisors, 762 F.2d 1038, 1040 (D.C.Cir. 1985), quoting H.R.Rep. No. 1380, 93d Cong., 2d Sess. 14-15 (1974).
The government in this case of course does not and cannot argue that OMB is not an “agency” for FOIA purposes, since to advise and assist the President is not OMB’s “sole function.” See Sierra Club v. Andrus, 581 F.2d 895, 902 (D.C.Cir.1978) (OMB found to be FOIA “agency” due to its numerous statutory duties). Though I-need not, and do not purport to, decide the question, it is arguable that, insofar as OMB does directly “advise and assist the President,” communications to and from OMB in pursuance of this function may be protected by the President’s constitutional privilege, even if Exemption 5 of the FOIA did not exist. But since the issue was not addressed below, I do not believe that this court has a sufficiently developed record to characterize with confidence the role of OMB under Executive Order Nos. 12,291 and 12,498 at issue here. See 31 U.S.C. § 501 note (1982) (statutory functions of Bureau of the Budget vested in President, then delegated by him to OMB); id. §§ 1104, 1108 (agencies required to submit appropriations requests to President, whom statute requires prepare budget).
The majority apparently believes that the constitutional privilege is restricted to the President himself. Maj. op. at 1532. This is a troubling position because it ignores the President’s need, both long-established and all the more imperative in the modern administrative state, to delegate his duties. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 , 2 L.Ed. 60 (1803); Myers v. United States, 272 U.S. 52, 117 , 47 S.Ct. 21, 25 , 71 L.Ed. 160 (1926); see generally Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum.L.Rev. 574, 660-61 (1984) (presidential intervention in agency proceedings “almost always” someone other than President acting in his name; “anticipated delegation” explains Constitution’s references to “Departments”). If, as it appears, OMB’s rulemaking oversight here at issue is a delegation either of powers vested personally in the President by statute, 31 U.S.C. §§ 501 & note, 1104, 1108 (1982), or of his powers under the Constitution itself, see art. II, § 2 (President may “require the Opinion, in writing, of the principal Officer in each of the executive Departments”), this delegation to be effective should carry with it the delegation of the President’s constitutional privilege.
Contrary to the majority’s view, applying the privilege to some functions of OMB would not invite its extension “to the entire Executive Branch.” Maj. op. at 1533. The vast bulk of the executive branch, which receives its authority to act not simply by *1540 delegation from the President but primarily by statutory delegation from Congress, would therefore be unable to invoke the President’s privilege. Compare Marbury v. Madison, 5 U.S. (1 Cranch) at 166 (acts of “political or confidential agents” of executive who merely “execute the will of the President” are “only politically examinable” while those pursuant to a “specific duty ... assigned by law” and affecting “individual rights” are remediable by courts) and Kendall v. United States, 37 U.S. (12 Pet.) 524, 610 , 9 L.Ed. 1181 (1838) (distinguishing executive officer’s “duty and responsibility that grow out of and are subject to the control of the law” from those simply subject “to the direction of the President”) with Gravel v. United States, 408 U.S. 606, 616-18 , 92 S.Ct. 2614, 2622-23 , 33 L.Ed.2d 583 (1972) (extending senator’s speech-or-debate immunity to aide performing “a protected legislative act” but finding that such an act includes only some of senator’s acts in official capacity).
I advance these thoughts not to assert that a constitutional privilege does apply here but only to warn that the majority’s quick resolution of this question is altogether too simplistic.
In summary, the Regulations Log is properly protected from disclosure by the deliberative process privilege embodied in Exemption 5 of the FOIA. The majority fails to reach this result only by a mistaken and far-reaching reinterpretation of that exemption. Accordingly,
I dissent.
. The Court said that, since the General Counsel’s memoranda had "real operative effect — it permits litigation before the Board," Exemption 5 applied only because the General Counsel must become a litigant in the case about which he made his decision. This limiting factor has no relevance here because the fact of forwarding a proposal to regulate has no “real operative effect” any more than does a recommendation to regulate within the FDA, HHS, or OMB. As the Court held in Grumman Aircraft, Exemption 5 protects inter-agency recommendations as much as it does intra-agency recommendations. 421 U.S. at 188, 95 S.Ct. at 1502.
. There is no parallel between the NLRB General Counsel’s explanation of refusals to file complaints and information about HHS’s or OMB's disapproval of proposed regulations. The General Counsel’s explanation in a process of adjudication is final and nonreviewable and hence becomes “secret law,” which courts have held must be made known. FDA, HHS, or OMB decisions not to regulate or not to regulate in a particular way are not part of an adjudicatory *1536 process and are without precedential force or influence. Such refusals are prudential. Moreover, persons who think that regulations should be proposed can in effect obtain review of the decision by petitioning for rulemaking. 5 U.S.C. § 553 (e) (1982). If the agency refuses to initiate a rulemaking, the Administrative Procedure Act requires the agency to give its reasons. Id. § 555(e). The agency’s decision not to regulate is then subject to judicial review. See, e.g., American Horse Protection Ass'n v. Lyng, 812 F.2d 1 (D.C.Cir.1987).
. The district court rejected any analogy to judicial decisionmaking since judges are not subject to the FOIA, 630 F.Supp. at 551 n. 1. That is a proposition not in dispute and utterly irrelevant. Courts are not subject to the FOIA for the same reasons that Exemption 5 takes agency deliberative processes out of the FOIA. That is why courts have long looked by analogy to the needs of their own decisionmaking processes to assess claims of privilege based on the needs of executive decisionmaking. See, e.g., United States v. Nixon, 418 U.S. 683, 708 , 94 S.Ct. 3090, 3107 , 41 L.Ed.2d 1039 (1974) (President’s expectation of "confidentiality in his conversations and correspondence” is "like the claim of confidentiality of judicial deliberations"); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 326 (D.D. C.1966); see also United States v. Morgan, 313 U.S. 409, 422 , 61 S.Ct. 999, 1004 , 85 L.Ed. 1429 (1941) (mental processes of administrator, like those of judge, may not be examined).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476013. Public record. Not legal advice.