Amicus Curiae Brief — Department of Interior v. Klamath Water Users Protective Assn.

DEC /2 200 ie Fiita

No. 99-1871 ) 20

In the CLERK

Supreme Court of the United States

UNITED STATES DEPARTMENT OF THE INTERIOR AND

BUREAU OF INDIAN AFFAIRS,

Petitioners,

Vv.

KLAMATH WATER USERS PROTECTIVE ASSOCIATION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE REPORTERS COMMITTEE

FOR FREEDOM OF THE PRESS, AMERICAN SOCIETY OF

NEWSPAPER EDITORS, AND THE SOCIETY OF

PROFESSIONAL JOURNALISTS

IN SUPPORT OF RESPONDENT

Lucy A. DALGLISH, Esq.

Counsel of Record

GREGG P. LESLIE, Esq.

CATHERINE J. CAMERON, ESQ.

THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

1815 N. Fort Myer Dr., Suite 900

Arlington, Virginia 22209

(703) 807-2100

(additional counsel for amici listed on inside cover)

ADDITIONAL COUNSEL FOR AMICI:

Counsel for the American Society of Newspaper Editors

RICHARD SCHMIDT, ESQ.

KEVIN M. GOLDBERG, ESQ.

COHN & MARKS

1920 N Street NW, Suite 300

Washington, D.C. 20036

(‘ounsel for the Society of Professional Journalists:

BRUCE W. SANFORD, ESQ.

ROBERT D. LYSTAD, ESQ.

BRUCE D. BROWN, ESQ.

BAKER & HOSTETLER LLP

1050 Connecticut Avenue NW

Suite 1100

Washington, D.C. 20036

TABLE OF CONTENTS

TABLE OF AUTHIORITIES ......-.cccccccccccees il

INTEREST OF AMICI CURIAE ................045. l

ie ccceesecssesecccccececces 3

SUMMARY OF ARGUMENT ..................... 5

eke tsbewesedoceeceesess 6

IV.

It is necessary for the public to have access to

communications of interested parties attempting to

influence an agency during a decision-making

jj ieee eeebeseeeeacebececceccecess 6

One significant purpose behind enacting the

Freedom of Information Act was to promote

governmental accountability................. 10

Exemptions to the Freedom of Information Act are

to be narrowly tailored so as not to overburden the

primary purpose of the Freedom of Information Act

— public disclosure. A narrow reading of

Exemption 5 would certainly not allow it to reach

the comments of an outside party seeking to further

Di Chek ebeesesecdeceecececees 12

Documents submitted by a non-governmental party

for the purpose of promoting its self-interest in the

outcome of an agency determination are not inter-

agency or intra-agency documents. ........... 14

V. Consultations with Native American Tribes about

government decisions that affect tribal interests are

to be open to the public so that the press and other

interested groups can evaluate tribal influence on

centroversial government decisions .......... 16

CRED scvecccdennssecsdutesnaneeeseens 17

ee ae SS ~ ee ee ratte

-lli-

TABLE OF AUTHORITIES

Cases

County of Madison v. United States Dep't of Justice,

641 F.2d 1036 (Ist Cir. 1980) .................

Covelo Indian Community v. F.E.R.C., 895 F.2d 581

SRE CHEE cccvcvtcceccecnccececsesccens

Department of the Air Force v. Rose,

PPP T IT TT TTT TTT TTT

EPA v. Mink, 410 U.S. 73 (1973) ..............45-

Formaldehyde Inst. v. HHS, 889 F.2d 1118

SG CUED ceececcuuecencecccnadeveses

Grand Cent. Partnership, Inc. v. Cuomo,

FD I SOP Ge BOOED cc cccccccccceccccs

Klamath Water Users Protective Ass'n v. Department

of the Interior, 189 F.3d 1034 (9th Cir. 1999), cert.

granted, 121 S.Ct. 28 (2000) .................

Montana v. EPA, 137 F. 3d 1135 (9th Cir. 1998),

cert denied, 525 U.S. 921 (1998) ..............

NLRB v. Robbins Tire & Rubber Co.,

See ee TE co nckevadenccentccesesess

Skokomish Indian Tribe v. F_E.R.C.,

121 F.3d 1303 (9th Cir. 1997) ............0...

-iV-

Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) ... 13, 15

Thurner Heat Treating Corp. v. NLRB, 839 F.2d 1256

PE CD ovbceecdnddkedasseedcieskaanes 13

United States Dep't of Justice v. Julian,

Se HOD cb: Dnddcdcdedscdendcecesanes 12

United States Dep't of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749 (1989) ....... 11

United States Weber Aircraft Corp.,

GE CEE secaducsocnscencdesesesess 12

Young v. Rice, 826 S.W. 2d 252, 308 Ark. 593

DCE sccuenneecesuéhesdhicessinaceues 12

Van Bourg v. NLRB, 751 F.2d 982

tC i. Kec uuvebiecuecdbecenndeenteet 13°

Newspaper Articles:

Richard Carelli, Supreme Court to hear FOIA case in

water-use dispute, THE ASSOCIATED PRESS STATE AND

LOCAL WiRE, Sept. 26, 2000 at State and Regional,

Washington Dateline ................65--0000ee 5

Bill Hume, District Seeks To Use Tribal Sovereignty To

Block ESA, ALBUQUERQUE JOURNAL, May 21,

OTE ccd vecesrcccccosccssessesceseseeces 9

- — —_ —— ——_

TTS WaT vee

_-_

: ae

————— ee eee wen 2.2 AE. 2s

-V-

Bill McAllister, Senators Debate Animas-La Plata But Vote

on Water Project Delayed for Weekend Campaigning,

THE DENVER Post, Oct. 20, 2000 at B-6 ........... )

Kim Murphy, Native Americans get in the Spirit of

Political Empowerment; Elections: Tribes Nationwide

are Launching Get-out-the-vote Drives, Seeking to

Raise Their Voice Over Environmental and Other

Issues Affecting Them, LOS ANGELES TIMES, Nov. 1,

2000 at Part A, Part 1, Page 16 .................. 8

Julie Tamaki, California and the West; farmers, tribes have

stake in river ruling’ environment: Babbitt is expected

to decide soon on plan to double trinity’'s flow and aid

fish. Opponents say the water is needed for irrigation

and power generation, LOS ANGELES TIMES, Aug. 9,

2000 at Part A; Part 1; Page 3; Metro Desk. ........ 5

Non-Indian's Suit Challenging Tribe's Authority to

Regulate Her Land is Revived, REAL Es-

TATE/ENVIRONMENTAL LIABILITY NEws, Oct. 27,

PS CME 6 See eddteedadccéecsecevceas 8

Senate Report:

S. Rep. No. 813, 89th Cong. Ist Sess. 3 (1965) .... 10,12

House Report:

H.R. Rep. No. 1497, 89th Cong. 2d Sess. (1966) ...... 12

Books:

Donald R. Field, James C. Barron & Burl F. Long, WATER.

AND COMMUNITY DEVELOPMENT, SOCIAL AND

ECONOMIC PERSPECTIVES 29 (1974). . 2... 06. 0 eee 7

Wendy Nelson Espeland, THE STRUGGLE FOR WATER,

POLITICS, RATIONALITY, AND THE IDENTITY IN THE

AMERICAN SOUTHWEST, 4-5 (1998). 2... ........55. 7

Other Authorities:

Secretary of the Interior Bruce Babbit Order

Sh, DES, OH SOU ccccccecccccecceseesses 17

William J. Clinton, Memorandum for the Heads of

Executive Departments and Agencies (April 29,

SD sanecuabadteuscudeaccectseues a eeeees 15,17

Janet Reno, Memorandum for Heads of Departments

and Agencies (Oct. 4.1993) 2.0.0... cee eee eee 1]

Statement by the President Upon Signing Bill Revising

Public Information Provisions of the Administrative

Procedure Act, Weekly Comp. Pres. Doc. 895

Cal G, FERED c ccc cc cccccccscccenecsnceesens ll

a ES OP I ee ES eT

In the

Supreme Court of the United States

No. 99-1871

UNITED STATES DEPARTMENT OF THE INTERIOR AND

BUREAU OF INDIAN AFFAIRS,

Petitioners,

Vv.

KLAMATH WATER USERS PROTECTIVE ASSOCIATION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE REPORTERS COMMITTEE

FOR FREEDOM OF THE PRESS, AMERICAN SOCIETY OF

NEWSPAPER EDITORS, AND THE SOCIETY OF

PROFESSIONAL JOURNALISTS IN SUPPORT OF

RESPONDENT

INTEREST OF AMICI CURIAE'

The Reporters Committee for Freedom of the Press is a

voluntary, unincorporated association of reporters and editors

' Pursuant to Sup. Ct. R. 37.6, counsel for amici curiae declare

that they authored this brief in total with no assistance from the parties.

Additionally, no individuals or organizations other than the amici

made a monetary contribution to the preparation and submission of

this brief. Written consent of all parties to the filing of the brief amici

curiae has been filed with the Clerk pursuant to Sup. Ct. R. 37.3(a).

2

that works to defend the First Amendment rights and freedom

of information interests of the news media. The Reporters

Committee has provided representation, guidance and

research in First Amendment and Freedom of Information Act

litigation since 1970.

The American Society of Newspaper Editors is a profes-

sional organization of more than 900 persons who hold

positions as directing editors of daily newspapers in the

United States and Canada.

The Society of Professional Journalists is dedicated to

improving and protecting journalism. It is the nation's largest

and most broad-based journalism organization, dedicated to

encouraging the free practice of journalism and stimulating

high standards of ethical behavior. Founded in 1909 as Sigma

Delta Chi, SPJ promotes the free flow of information vital to

a well-informed citizenry; works to inspire and educate the

next generation of journalists; and protects First Amendment

guarantees of freedom of speech and press.

Amici curiae’ s interest in this case is in preserving public

access to federal government records, particularly those that

document efforts of interested non-agency parties in contro-

versial government decision-making processes. Congress

compels government accountability, in part, through the FOI

Act, which requires agencies to disclose the records they use

in the course of their business unless one of nine narrowly

construed exemptions applies. Thus, amici submit this brief

in support of the Klamath Water Users Protective Associa-

tion’s argument that Exemption 5 of the FOI Act does not

extend to documents submitted by interested third parties to

a federal government agency.

Giieaiieadtiiawueewr Ei eE —

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3

STATEMENT OF FACTS

The core issue of this case is whether communications

submitted to the Department of the Interior from Klamath

Basin Tribes with a direct interest in the outcome of an

agency decision can be closed from public inspection under

Exemption 5 of the Freedom of Information Act, hereinafter

the "FOI Act." The facts relevant to this case are:

In 1993 the Secretary of the Department of the Interior

issued an order directing the heads of all agencies to consult

with Tribes prior to making decisions that would affect tribal

interests and to make these consultations open to public

scrutiny. A year later, President Clinton echoed the Secre-

tary’s comments for consultation and openness in a memoran-

dum issued to government agencies.

In 1995 the Department of the Interior began the ongoing

process of developing a long-term plan for allocation of water

from the Klamath River Basin in Oregon to surrounding

interests. Several parties, including Native American Tribes,

farmers, environmentalists and local cities, have strong

interests in the Department of the Interior’s decisions. Two of

the most vocal interests are the Klamath Basin Tribes and the

Klamath Water Users Protective Association, a nonprofit

group composed primarily of local irrigation districts and

other water users.

The Department of the Interior received documents

advocating the positions of the Klamath Basin Tribes, and of

other water users, including the Klamath Water Users

Protective Association, pertaining to the water allocation in

the Klamath River Basin. The Klamath Basin Tribes and the

Klamath Water Users Protective Association similarly

submitted correspondence to the Department. The Department

4

signed an agreement with the Klamath Basin Tribes labeling

them "consultants," but did not sign a similar agreement with

the association.

Both the Tribes and the association submitted FOI Act

requests to agencies of the Department of the Interior,

including the Bureau of Indian Affairs, in an effort to view

other parties’ correspondence with the department. The

Klamath Basin Tribes were granted access to the correspon-

dence submitted by the Klamath Water Users Protective

Association. However, the Department refused to release the

Klamath Basin Tribes’ correspondence, citing deliberative-

process and attorney-work-product privileges under the FOI

Act’s Exemption 5, which protects certain inter-agency or

intra-agency records.

The Klamath Water Users Protective Association brought

suit under the FOI Act to obtain the Klamath Basin Tribes’

and others’ correspondence with the Department in the U.S.

District Court for the District of Oregon. The district court

accepted the recommendations of a magistrate judge to grant

the Department of the Interior summary judgment because the

documents were exempt from the FOI Act as inter-agency or

intra-agency memoranda.

The Ninth U.S. Circuit Court of Appeals rejected the

Department of the Interior’s claim that these records were

inter-agency or intra-agency records. The appeals panel wrote

that the withheld correspondence had been submitted by an

interested party outside the agency in an effort to sway the

agency’s decision on the allocation of water resources, and,

therefore, it was not exempt under Exemption 5.

5

SUMMARY OF THE ARGUMENT

This brief urges the Court to affirm the Ninth Circuit's

opinion based on the statutory intent of the Freedom of

Information Act. The FOI Act is clearly a disclosure statute

and Congress intended that exceptions to the general rule of

disclosure be narrowly tailored. Because these records are not

inter-agency or intra-agency records exempt under Exemption

5, or any other exemption to the FOI Act, they should be

released to the public.

The public has a strong interest in the Department of the

Interior’s water allocation decisions, in the influence various

outside and competing interests bring to bear on the decision-

making process, and in how the government responds to that

influence.

Water allocation decisions are important all across the

country for economic, environmental, cultural and a myriad

of other reasons. Denying the public access to communica-

tions from selected interests will bar the public from under-

standing how the government reaches these decisions, even

though this Court has said that a core purpose of the FOI Act

is to foster public understanding of the operations and

activities of government.

These tribal communications with the Department of the

Interior are not inter-agency or intra-agency records. Follow-

ing the FOI Act’s mandate to narrowly construe exemptions,

the Ninth Circuit refused to extend Exemption 5 to these

records written by a non-agency party to affect the outcome of

an agency’s decision-making process. The Ninth Circuit’s

decision should be affirmed. To deny the public access to

information submitted by parties involved in a controversial

government decision-making process undermines the public’s

6

ability to oversee the workings of its government.

ARGUMENT

Il. It is necessary for the public to have access to

communications of interested parties attempting to

influence an agency during a decision-making

process.

The public has a strong interest in knowing who is

influencing the government in its decision-making process

and how the government accepts or rejects that influence. The

FOI Act should serve that interest, and enable the public to

comprehend that influence.

In gathering the multiple and conflicting views of tribal,

environmental, farming, commercial and other entities, the

Department of the Interior is preparing to make complicated

decisions that will affect many lives and livelihoods. As

evident from the amicus briefs submitted on the petition for

writ of certiorari, there are a multitude of parties that are

interested in the outcome of these determinations.

The Klamath Basin Tribes and the Klamath Water Users

Protective Association provided the Department of the

Interior with communications evidencing their claims of

rights to the water and recommendations for the allocation of

those rights. Subsequently, both parties made FOI Act

requests for each other’s communications. The Tribes were

granted their request because the records were not considered

exempt. Even though the tribal communications were submit-

ted in the same way as the Klamath Water Users Protective

Association communications, they were not released.

Water rights are an extremely controversial issue across

— a a

AP

Ot ee

7

the country, especially in the West, where:

water is power, literally and figuratively . . .

people’s attachments to water extend far

‘ beyond its financial benefits; water symbol-

izes security, opportunity, and self-determina-

tion. In the desert, it is associated with life,

power, and status.

Wendy Nelson Espeland, THE STRUGGLE FOR WATER.

POLITICS, RATIONALITY, AND THE IDENTITY IN THE AMER-

ICAN SOUTHWEST, 4-5 (1998).

Historically, the war over water has had a significant

impact on the shape of the West. The modern city of Los

Angeles and the Owens Valley, where it finds most of its

water, have been shaped culturally, politically and economi-

cally by their struggled with water rights:

The scarcity of water in Los Angeles created

a strong sense of community in that city. This

sense of community permitted (or required) a

search for water sources that eventually led to

a small agricultural valley in the Sierra Ne-

vada’s 300 miles away. . . Transporting the

water resulted in continued growth, mainte-

nance of capital values and a stronger commu-

nity in Los Angeles but it ended economic

activity, reduced capital values and decimated

a community in Owens Valley.

Donald R. Field, James C. Barron & Burl F. Long, WATER

AND COMMUNITY DEVELOPMENT, SOCIAL AND ECONOMIC

PERSPECTIVES, 29 (1974),

Because water allocation is such an important issue across

8

the country, it is essential for the public to know the status of

water rights adjudications and water allocations. Without

comprehensive access to the opinions expressed, the public

cannot critique the government’s water allocations decisions,

and the news media, who depend upon access to government

records, cannot adequately inform the public on these matters.

Because of this public concern, the news media devote much

effort to covering these issues.

For instance, in one week, more than 40 news stories

involving water rights appeared in news publications of

general interest around the country.’ Several stories concerned

a pending effort by Native American Tribes to unseat a

congressional representative in Montana in order to promote

more legislation preferential to their water rights. This issue

was covered by publications in as far away as Los Angeles.

Kim Murphy, Native Americans get in the Spirit of Political

Empowerment; Elections: Tribes Nationwide are Launching

Get-out-the-vote Drives, Seeking to Raise Their Voice Over

Environmental and Other Issues Affecting Them, LOS AN-

GELES TIMES, Nov. 1, 2000 at Part A, Part 1, Page 16.

Stories on water rights also appeared in specialized

publications. For example, a legal newspaper covered a Ninth

Circuit decision to treat a Native American Tribe as a state

under the Clean Water Act and its effect on subsequent case

law. Non-Indian's Suit Challenging Tribe's Authority to

Regulate Her Land is Revived, REAL Es-

TATE/ENVIRONMENTAL LIABILITY NEWS, vol. 12, no. 3, Oct.

27, 2000; Montana v. EPA, 137 F. 3d 1135 (9th Cir. 1998),

* Stories were found through a search in the LEXIS/NEXIS News

Group, All database for the week of October 26 to November |, 2000

for "water rights."

eee eee ae

9

cert denied, 525 U.S. 921 (1998).

There were no less than 200 stories over the last two years

about Native American Tribes’ claim of right to water access

during a Department of the Interior determination of how to

allocate water.’ The Denver Post profiled the Department of

the Interior’s allocation of the Animas-La Plata water project

to Denver and Colorado when the Ute Native American Tribe

had a claim of right to some of the water. Bill McAllister,

Senators Debate Animas-La Plata But Vote on Water Project

Delayed for Weekend Campaigning, THE DENVER Post, Oct.

20, 2000 at B-6.

Additionally, the Albuquerque Journal profiled the Rio

Grande Conservancy District’s attempt to garner increased

access to water previously diverted to Native American

reservation land under an agreement with the Department of

the Interior. Bill Hume, District Seeks To Use Tribal Sover-

eignty To Block ESA, ALBUQUERQUE JOURNAL, May 21, 2000

at B2.

The Klamath River Basin water controversies have also

been covered extensively by the press. A search of the last

two years of media coverage of the Department of the Inte-

rior’s ongoing struggles over the allocation of water from the

Klamath River Basin returned over 20 news stories on the

issue.

* Stories were found through a search in the LEXIS/NEXIS News

Group, All database for the "‘department of the interior’ and indian

w/S ‘water right’."

* Stories were found through a search in the LEXIS/NEXIS News

Group, All database for “klamath and water w/S0 ‘department of

(continued...)

10

The news media cover these issues because they are of

great public concern. The media cannot serve the public’s

interest in understanding these issues when pertinent views

influencing government decisions are withheld.

Il. One significant purpose behind enacting the

Freedom of Information Act was to promote

governmental accountability.

It is clear from the Senate report accompanying the

enactment of the FOI Act that the purpose of the bill was "to

establish a general philosophy of full agency disclosure." S.

Rep. No. 813, 89th Cong. Ist Sess. 3 (1965); see also County

of Madison v. United States Dep't of Justice, 641 F.2d 1036,

1040 (ist Cir. 1980).

While signing the FOI Act, President Johnson said the bill

was designed to promote governmental accountability:

This legislation springs from one of our most

essential principles: a democracy works best

when the people have all the information that

the security of the Nation permits. No one

should be able to pull the curtains of secrecy

‘(...continued)

interior’ over the last two years. See, e.g., Richard Carelli, Supreme

Court to hear FOIA case in water-use dispute, THE ASSOCIATED

PRESS STATE AND LOCAL WIRE, Sept. 26, 2000 at State and Regional,

Washington Dateline; Julie Tamaki, California and the West; farmers,

tribes have stake in river ruling’ environment: Babbitt is expected to

decide soon on plan to double trinity's flow and aid fish. Opponents

say the water is needed for irrigation and power generation, LOS

ANGELES TIMES, Aug. 9, 2000 at Part A; Part |; Page 3; Metro Desk.

around decisions which can be revealed with-

out injury to-+he public interest.

Statement by the President Upon Signing Bill Revising Public

Information Provisions of the Administrative Procedure Act,

Weekly Comp. Pres. Doc. 895 (July 4, 1966).

This Court has recognized that the FOI Act’s role in

enabling citizens to act as watchdogs has not been lost in the

cases before it. This Court wrote that the FOI Act "seeks to

permit access to official information long shielded unneces-

sarily from public view and attempts to create a judicially

enforceable public right to secure such information from

possibly unwilling official hands." EPA v. Mink, 410 U.S. 73

80 (1973). Also, this Court acknowledged the FOI Act's role

in promoting an informed citizenry — a virtue vital to a

functioning democracy and to preventing government

corruption. NLRB v. Robbins Tire & Rubber Co., 437 U.S.

214, 242 (1978). This view is consistent with this Court’s

interpretation of the "purpose" of the FOI Act in a case where

records were denied. United States Dep't of Justice v. Report-

re M _ for Freedom of the Press, 489 U.S. 749, 773

The U.S. Department of Justice has also acknowledged

the disclosure purpose of the FOI Act. In 1993 Attorney

General Janet Reno rescinded the Department of Justice’s

1981 guidelines for defending FOI Act denials, setting the

new policy for FOI Act litigation. She wrote that the Depart-

ment of Justice would "apply a presumption of disclosure"

when deciding whether to defend FOI Act denials. Janet

Reno, Memorandum for Heads of Departments and Agencies

Joint Appendix 138, 138 (Oct. 4. 1993). This presumption,

she wrote, is to fulfill the "primary objective" of "maximum

responsible disclosure of government information." /d.

12

Ill. Exemptions to the Freedom of Information Act

are to be narrowly tailored so as not to

overburden the primary purpose of the Freedom

of Information Act — public disclosure. A

narrow reading of Exemption 5 would certainly

not allow it to reach the comments of an outside

party seeking to further its own interests.

Certainly there are tensions that could arise from the

disclosure of government information, and Congress ac-

counted for those that would merit withholding in the nine

exemptions codified in the FOI Act. As the legislative history

indicates, Congress expected these exemptions to be inter-

preted with an eye on the fullest disclosure possible. S. REP.

No. 813, 89th Cong., Ist Sess. 3 (1965); H.R. Rep. No. 1497,

89th Cong. 2d Sess. (1966). Because the primary purpose of

the FOI Act is disclosure, any exemptions must be narrowly

construed. Department of the Air Force v. Rose, 425 U.S.

352, 361 (1976). Even though there may be a broadly written

exception, it should be construed as narrowly as possible to

effect the public disclosure objective of the FOI Act. Young

v. Rice, 826 S.W. 2d 252, 254, 308 Ark. 593, 596 (Ark.

1992).

The plain text of Exemption 5 allows withholding of

documents that would be protected from disclosure when the

government is in civil litigation with another party. Therefore,

the ultimate question courts must answer in determining

whether a document is protected under Exemption 5 is if the

document would normally be released under a showing of

relevance to the court in a civil case. United States Dep't of

Justice v. Julian, 486 U.S. 1, 11-12 (1988); United States v.

Weber Aircraft Corp., 465 U.S. 792, 800 (1994).

—— ee — OE

13

The U.S. Court of Appeals for the D.C. Circuit has gone

the farthest in extending the reach of Exemption 5 by allow-

ing records created by outside objective consultants to be

considered inter-agency or intra-agency records. Formalde-

hyde Inst. v. HHS, 889 F.2d 1118 (D.C. Cir. 1989); Soucie v.

David, 448 F.2d 1067 (D.C. Cir. 1971). However, the D.C.

Circuit has only extended Exemption 5 to parties that have no

interest in the outcome of the decision. Formaldehyde, at

1123-24; Soucie, at 1078. The documents the D.C. Circuit has

extended Exemption 5 to cover are created by objective

decision-makers who aid the agency in objectively determin-

ing its course of actions. The D.C. Circuit’s rationale has been

that without protection from disclosure, objective parties, who

are aiding the agency out of some sense of civic duty, may not

want to become embroiled in controversial agency policy

making. Soucie, at 1078. This rationale does not extend to

interested parties who would submit communications to affect

agency decisions with or without protection from public

disclosure, such as the Klamath Basin Tribes in this case.

Other federal circuits have not defined Exemption 5 as

broadly as the D.C. Circuit. Instead these circuits have taken

a more narrowly tailored view of the exemption. In Van

Bourg v. NLRB, 751 F.2d 982, 986 (9th Cir. 1985), the Ninth

Circuit held that Exemption 5 would not cover affidavits

made by persons outside the agency because they were not

created inside the agency or by anyone who had a formal

relationship with the agency.

The U.S. Court of Appeals for the Seventh Circuit shared

the narrow view of Exemption 5 when it rejected the NLRB’s

argument that possession of documents made by outside

persons made them inter-agency documents. Thurner Heat

Treating Corp. v. NLRB, 839 F.2d. 1256, 1259-1260 (7th

14

Circ. 1988). Like the Ninth Circuit’s ruling in Van Bourg, the

Seventh Circuit found that statements of persons not em-

ployed by an agency were not inter-agency or intra-agency

records.

The U.S. Court of Appeals for the Second Circuit took an

even narrower approach to Exemption 5 in Grand Cent.

Partnership, Inc. v. Cuomo, 166 F.3d 473, 484 (2d C ir. 1999),

by refusing to extend Exemption 5 to a letter written by a

New York city councilman to the Department of Housing and

Urban Development. Although the state agency was a partner

with the federal agency in task forces and investigations —

arguably a formal relationship with the federal agency — the

Second Circuit found that Exemption 5 did not extend to a

letter sent to the federal government by a member of state

government. /d.

IV. Documents submitted by a non-governmental

party for the purpose of promoting its self-inter-

est in the outcome of an agency determination

are not inter-agency or intra-agency documents.

The Klamath Basin Tribe’s letters to the Department of

the Interior are not protected communications under Exemp-

tion 5, no matter what circuit’s test for inter-agency or intra-

agency documents is accepted. Allowing them to be so would

offend the purpose of the FOI Act by closing public access to

ex-parte communications from parties with an interest in the

outcome of controversial agency determinations.

The Klamath Basin Tribes are interested parties in an

~ agency determination of public importance. Not only are these

communications clearly outside the bounds of the FOI Act’s

exemptions, but to allow them to be classified as closed under

15

Exemption 5 would destroy the FOI Act’s applicability to

agency records and the public’s and press’ governmental

watchdog ability.

At the outset of the Department of the Interior's process in

making the determination of the fate of the Klamath River

Basin, it had the Klamath Basin Tribes sign consultation

agreements. These were in-line with a directive from Presi-

dent Bill Clinton to "consult . . . with" Native American

Tribes when making agency decisions that affect tribal

interests. William J. Clinton, Memorandum for the Heads of

Executive Departments and Agencies, Joint Appendix 49, 50

(April 29, 1994). However, the Ninth Circuit rejected the

Department of the Interior’s attempt to make the Klamath

Basin Tribe’s "consultants" for Exemption 5 purposes

because even under the D.C. Circuit's analysis, records of

communications ‘o an agency from interested parties are

simply not inter-agency or intra-agency records.

The Ninth Circuit’s decision in this case was well found-

ed. The "consultant" status of the Klamath Basin Tribes set

forth in their agreement with the Department of the Interior is

far differnt from the "consultant" relationship to which the

D.C. Circuit has extended Exemption 5. Soucie, at 1078. The

D.C. Circuit only extended the inter-agency and intra-agency

tests to reach communications from consultants who are

objective evaluators of agency policy, not interested parties.

To allow government agencies to contract in this way would,

in effect, allow an agency to close most, if not all, of its

records by simply signing agreements with outside persons.

Despite the Department of the Interior’s relationship with

the Klamath Basin Tribes, these communications are created

by outside interested parties. These documents, by their very

nature of being created by outside interested parties, cannot

16

possibly disclose the policy-making process of the Depart-

ment of the Interior. Therefore, they fail to meet the basic test

for the deliberative process privilege.

V. Consultations with Native American Tribes about

government decisions that affect tribal interests are

to be open to the public so that the press and other

interested groups can evaluate controversial tribal

influence on government decisions.

The Klamath Basin Tribes may have a unique, trust-like

relationship with the Department of the Interior. However,

this relationship does not afford the Tribes greater rights in

agency determinations than other parties invotved in the

determination. Skokomish Indian Tribe v. F.E.R.C., 121 F.3d

1303, 1308-09 (9th Cir. 1997); Covelo Indian Community v.

F E.R.C..895 F.2d 581, 586 (9th Cir. 1990). In cases decided

by the Ninth Circuit, the United States trust relationship with

Native Americans has not been found to grant Tribes greater

rights than a party would normally receive under the Federal

Energy Regulatory Commission’s regulations. Skokomish

Indian Tribe, at 1308-1309; Covelo Indian Community, at

586.

Because the Klamath Water Users Protective Associa-

tion’s communications with the Department of the Interior

were open for public inspection, the Tribes’ communications

should likewise be open for public inspection. "To hold

otherwise would extend Exemption 5 to shield what amount

to ex parte communications in contested proceedings between

the Tribes and the Department." Klamath Water Users

Protective Ass'n v. Department of the Interior, 189 F.3d

1034, 1039 (9th Cir. 1999), cert. granted, 121 S.Ct. 28

a

17

(2000).

Finally, and perhaps most importantly, the Department of

the Interior’s consultations with the Tribes have been declared

public by the President and the agency itself. The Secretary of

the Department of the Interior issued a directive in 1993 that

the heads of all agencies should consult with Tribes prior to

making a decision that could affect tribal interests. Secretary

of the Interior Bruce Babbit Order No. 3175, Joint Appendix

52,53 (Nov. 8 1993). The directive explicitly stated that these

consultations “are to be open and candid so that all interested

parties may evaluate for themselves the potential impact of

the proposals." Id. President Clinton issued a memorandum

containing an identical directive in 1994. William J. Clinton

Memorandum for the Heads of Executive Departments and

Agencies, Joint Appendix 49, 50 (April 29, 1994); Klamath

Water Users Protective Ass'n, at 1039.

CONCLUSION

The F ederal Freedom of Information Act was created by

Congress in part to aid the public and the press in observing

the processes of government. For this reason Congress

insisted that exceptions to the FOI Act should be interpreted

narrowly.

As organizations dedicated to furthering public access and

to helping reporters keep the public informed of the govern-

ment’s actions, amici’s interest is to protect reporter access to

governmental records. Although the Department of Justice

may wish to make this case seem like an isolated issue of

access to tribal communications, what it asks this court to rule

will have a more far-reaching effect on access to government

documents. A ruling in line with the Department of Justice’s

18

argument could close access to documents submitted to a

federal agency so long as the agency labels the submitting

party a "consultant." This potential for agencies to circumvent

the objectives of the FOI Act would not only prevent water

users from viewing the arguments of competing interests, it

would allow parties who stand to reap financial benefits to

press their interests with the government completely cloaked

from public scrutiny.

We believe that the Department of Justice’s position

would not only interfere with the right of the press and the

public to inspect public documents, but that it offends the FOI

Act’s mandate of disclosure. For this reason, we ask the Court

to reject the Department of Justice’s arguments and affirm the

decision of the Ninth Circuit.

Lucy A. DALGLISH, ESQ.

Counsel of Record

GREGG P. LESLIE, Esq.

CATHERINE J. CAMERON, Esq.

THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

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Arlington, VA 22209

(703) 807-2100

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December 13, 2000

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Of counsel:

Counsel for the American Socie

ty of News r Editors:

RICHARD SCHMIDT, Esq. piece

KEVIN M. GOLDBERG, Esq.

COHN & MARKS

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Washington, D.C. 20036

Counsel for the Society of Professional Journalists:

BRUCE W. SANFORD, Eso.

ROBERT D. Lystap, Esa.

BRUCE D. BROowN, Esa.

BAKER & HOSTETLER LLP

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