# National Wildlife Federation v. United States Forest Service

> Court of Appeals for the Ninth Circuit · November 14, 1988 · 861 F.2d 1114

URL: https://www.frixlaw.com/law-library/cases/9478394

## Case

- **Full name:** NATIONAL WILDLIFE FEDERATION, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE, Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** November 14, 1988
- **Citations:** 861 F.2d 1114; 1988 U.S. App. LEXIS 15168; 1988 WL 120140
- **Precedential status:** Published
- **Opinion:** Concurrence by Pregerson
- **Judges:** Wright, Wallace, Pregerson
- **Cited by:** 166 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478394

## How later opinions describe it (automated extraction)

- finding that a requester’s attempt to “uncover any discrepancies between ... the draft ... and those actually adopted” impermissibly “probe[s] the editorial and policy judgments of the decisionmakers”
- holding that Exemption 5 protects drafts of factual compilations because the public could "reconstruct the predecisional judgments of the administrator" who ultimately releases the factual summary
- holding that estimates of cost and usage associated with land use plans were deliberative because they were "opinions that figure[d] heavily in the formulation of Forest Service policies”
- discussing this legislative history and holding that opinions or recommendations regarding facts or consequences of fact are not automatically ineligible from exemption under exemption 5 and that material is exempt when the disclosure of the manner of selecting or presenting f…

## Opinion text

PREGERSON, Circuit Judge,
concurring:
I concur in the result reached by Judge Wallace. In this case the district court was not clearly erroneous in concluding that the *1124 contested documents were properly withheld under exemption (b)(5) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (b)(5) (exemption 5). The portions of the draft Forest Plans, draft EISs, and “previews” in question were not factual, but rather were deliberative in nature. They represented analyses of and tentative opinions about issues of concern to the Forest Service — aspects of the decision-making process covered by exemption 5. I write separately, however, because the language in the opinion is far broader than necessary or appropriate to decide this case. The majority applies a test developed in a line of District of Columbia Circuit cases that exempts factual materials “from disclosure to the extent that they reveal the mental processes of decision-makers.” Majority opinion at 14112 (citing cases).
Under the majority’s so-called “functional” test, FOIA is swallowed up by exemption 5, a result contrary to the plain purpose of the Act. FOIA is a disclosure statute which “seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.” Environmental Protection Agency v. Mink, 410 U.S. 73, 80 , 93 S.Ct. 827, 832 , 35 L.Ed.2d 119 (1973). For this reason, the Act’s exemptions must be narrowly construed. Indeed, as the Senate Committee Report explains, FOIA’s purpose is “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language_” S.Rep. No. 813, p. 3, n. 6.
The “functional” test might be read to allow an agency to withhold documents that are purely factual so long as they are “related to the process by which policies are formulated.” Majority opinion at 1118 (quoting Jordan v. United States Department of Justice, 591 F.2d 753, 774 (D.C. Cir.1978)). Because nearly everything an agency generates is somehow related to the deliberative process, careless application of the “functional” test would afford government agencies unrestrained discretion in deciding whether to release materials requested under FOIA. Even though this result is not intended by the majority, the opinion could be misconstrued to protect from disclosure virtually any government document that does not constitute a final decision. Such a result is inconsistent with the stated purpose of FOIA: to provide “a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.” Mink, 410 U.S. at 80 , 93 S.Ct. at 832 (quoting S.Rep.No. 813, p. 3).
We should all bear in mind that secret government is abhorrent to democratic values. FOIA reflects Congress’ judgment that the people have a right to know how their government actually functions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478394. Public record. Not legal advice.