Petition for Writ of Certiorari — Justice Justice v. Department of Defense (No. 08-125)

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3 Supreme Cour, U.S.

& eye JUL 2 9 2008

No. OFFICE OF FHE CLERK

In the Supreme Court of the Gnited States

NATIGNAL INSTITUTE OF MILITARY J USTICE,

Petitioner,

Vv.

UNITED STATES DEPARTMENT OF DEFENSE

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals for the

District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

DAN M. KAHAN ANDREW J. PINCUS

Yale Law School Counsel of Record

Supreme Court Clinic | CHARLES A. ROTHFELD

127 Wall Street Mayer Brown LLP

New Haven, CT 06511 1909 K Street, NW

(203) 432-4800 Washington, DC 20006

(202) 263-3000

Counsel for Petitioner

WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

QUESTION PRESENTED

Whether documents submitted by private citi-

zens in response to a request by a government offi-

cial for comment on proposed rules qualify as “inter-

agency or intra-agency memorandums or letters” ex-

empt from disclosure under Exemption 5 of the Free-

dom of Information Act, 5 U.S.C. § 552(b)(5).

RULE 29.6 STATEMENT

The National Institute of Military Justice

(“NIMJ”) states that it has no parent companies, nor

does any publicly-held company have a 10% or

greater ownership interest in NIMJ.

ill

TABLE OF CONTENTS

Page

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STATUTORY PROVISION INVOLVED................... l

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B. The Proceedings In The District

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C. The Court Of Appeals Decision ................. 8

REASONS FOR GRANTING THE PETITION ...... 12

A. The Court of Appeals’ Broad Con-

struction Of Exemption 5 Is Incon-

sistent With The Statute’s Plain

Language And This Court’s Ruling

Ce a wonennenes 13

B. Review Is Appropriate Because Only

This Court Can Correct The Flawed

Interpretation Of Klamath Adopted

By The Principal Circuit For FOIA

iia id cttiniendsidldaashesensercescoee 17

C. Questions Regarding The Applica-

tion Of Exemption 5 To Documents

Submitted By Persons Outside The

Government Arise With Consider-

ee I Si tithcsiaininiliiate Witilitidesnontoneses 19

TABLE OF CONTENTS—continued

Page

SEI i ssecsebiebicvingitniiesdendionidalanianssinninenonainemnianaee

TABLE OF AUTHORITIES

Page(s)

CASES

Board of County Comm'rs v.

Dep't of the Interior, No, 2:06-CV-209-TC,

2007 WL 2156613 .D. Utah July 26, 2007)....... 20

Citizens for Responsibility & Ethics in

Washington v. Dep't of Homeland Security,

514 F.Supp.2d 36 (D.D.C. 2007)..............00......0.. 20

Dep't of Justice v. Tax Analysts,

Nee 3

Dep't of the Air Force v. Rose,

i esuemasene 3,15

Dep't of the Interior v. Klamath Water

Users Protective Ass'n, 532 U.S. 1 (2001)....passim

FBI v. Abramson, 456 U.S. 615 (1982).................6.. 16

Formaldehyde Institute v. Department of

Health & Human Services,

889 F.2d 1118 (D.C. Cir. 1989)....................... 8,18

Information Network for Responsible Mining

(“INFORM”) v. Dep't of Energy, No.

06-CV-02271-REB, 2008 WL 762248,

a cccenceness 19

Miccosukee Tribe of the Indians of Florida v.

United States, 516 F.3d 1235 (11th Cir.

SEEN ORS OSES Nea a 19

Missouri Coalition for Environment Founda-

tion v. Army Corps of Engineers, No.

4:05CV02039 (E.D.Mo. March 20, 2007)............ 20

TABLE OF AUTHORITIES—continued

Page(s)

Natural Resources Defense Council v.

Dep't of Defense,

442 F.Supp.2d 857 (C.D. Cal. 2006)...........cc00.0-. 20

Nulankeyutmonen Nkihtaqmikon v.

Bureau of Indian Affairs,

493 F.Supp.2d 91 (D.Me. 2007) .....................000e 20

People For The American Way Foundation v.

Dep't of Educ., 516 F.Supp.2d 28 (D.D.C.

EE EISELE SSE Ok ae en aD 20

Public Citizen, Inc. v. Department of Justice,

111 F.3d 168 (D.C. Cir. 1997)......................... 8,18

Ryan v. Department of Justice,

ee | passim

Sakamoto v. Environmental Protection Agency,

443 F.Supp.2d 1182

Ce sccanesinsonsces 20

United States Department of Justice v.

Julian, 486 U.S. 1 (1988)......................... 4, 13, 14

Votehemp, Inc. v. Drug Enforcement Admin.,

No. 02-985 (RBW), 2006 WL 1826007

no saccssncseccscccccoccees 20

STATUTES AND REGULATIONS

EE EN A is a a 13

a. sacidenmanueooneteniies 1,3

a ceneaudeasetoececnsendin 13

ID... sc scccsnccoccesenenaccenecesteseos 6, 19

ET a 2, 3, 13

EE a ee a 1

66 Fed. Reg. 57,833 (Nov. 16, 2001) ...............0....ceee es 4

vil

TABLE OF AUTHORITIES—continued

Page(s)

68 Fed. Reg. 39,374 (July 1, 2003).........00..0.cecccececeees 5

MISCELLANEOUS

U.S. Department of Defense News Transcript,

DoD News Briefing on Military Commis-

sions (Mar. 21, 2002), available at www.

defenselink.

mil/transcripts/transcript.aspx? transcrip-

SESE ER en ene ae nT Oy En 5

PETITION FOR A WRIT OF CERTIORARI

The National Institute of Military Justice, re-

spectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-40a) is reported at 512 F.3d 677. The opinion of

the district court (App., infra, 4la-87a) is reported at

404 F. Supp. 2d 325.

JURISDICTION

The judgment of the court of appeals was entered

on January 11, 2008. A timely petition for rehearing

and rehearing en banc was filed on February 25,

2008, and was denied on April 30, 2008. App., infra,

88a. This Court’s jurisdiction rests on 28 U.S.C. §

1254(1).

STATUTORY PROVISION INVOLVED

The Freedom of Information Act, 5 U.S.C. § 552

provides, in relevant part:

(a) Each agency shall make available to the

public information as follows:

***

(3)(A) * * * [EJach agency, upon any request

for records which (i) reasonably describes

such records and (ii) is made in accordance

with published rules stating the time, place,

fees (if any), and procedures to be followed,

shall make the records promptly available to

any person.

***

(b) This section does not apply to matters

that are —

(5) inter-agency or intra-agency memoran-

dums or letters which would not be available

by law to a party other than an agency in

litigation with the agency.

STATEMENT

Exemption 5 of the Freedom of Information Act

is limited to “inter-agency or intra-agency memo-

randums or letters which would not be available by

law to a party other than an agency in litigation with

the agency.” 5 U.S.C. § 552(b)(5) (emphasis added).

In Department of the Interior v. Klamath Water Users

Protective Association, 532 U.S. 1 (2001), this Court

held that the “inter-agency or intra-agency” require-

ment should not be “drain[ed] * * * of independent

vitality,” rejecting the argument that “intra-agency’

is a purely conclusory term, just a label to be placed

on any document the Government would find it valu-

able to keep confidential.” Jd. at 12.

Notwithstanding this Court’s clear statements in

Klamath, the court of appeals majority held that

documents written by private citizens and submitted

by them to the government qualified as “inter-agency

or intra-agency” as long as there are “some indicia of

a consultant relationship between the outsider and

the agency”—even if those indicia consist solely of a

request by a government official for the private citi-

zen’s views. App., infra, 19a. As Judge Tatel ex-

plained in dissent, the majority’s ruling “does exactly

what the Supreme Court forbade in * * * [Klamath]:

it makes ‘intra-agency’. . . a purely conclusory term.”

App., infra, 23a.

The decision below does not just flagrantly disre-

gard this Court’s analysis in Klamath; it also creates

confusion among the lower courts regarding the ap-

propriate test for determining whether a document

qualifies for protection under Exemption 5, an issue

that arises with some frequency. Review by this

Court is plainly warranted.

A. The FOIA Request

1. The Freedom of Information Act, 5 U.S.C. §

552, provides broadly for disclosure of government

documents upon request unless the documents fall

within specific exceptions to the disclosure obliga-

tion. “[T]hese limited exemptions do not obscure the

basic policy that discivsure, not secrecy, is the domi-

nant objective of the Act.” Dep't of the Air Force v.

Rose, 425 U.S. 352, 361 (1976). Thus, “[clonsistent

with the Act’s goal of broad disclosure, these exemp-

tions have been consistently given narrow compass.”

Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151

(1989).

This case involves the scope of Exemption 5,

which allows the government to withhold “inter-

agency or intra-agency memorandums or letters

which would not be available by law to a party other

‘than an agency in litigation with the agency.” 5

U S.C. § 552(b)(5). Most decisions construing Exemp-

tion 5 have focused on the provision’s second condi-

tion, whether particular agency documents were pro-

tected by a civil discovery privilege. This case in-

volves the first condition, whether a document quali-

fies as “inter-agency or intra-agency.”

The Court addressed that issue in Klamath, rec-

ognizing that “the first condition of Exemption 5 is

no less important than the second; the communica-

tion must be ‘inter-agency or intra-agency.” 532 U.S.

at 9. The question in Klamath was whether letters

from Indian tribes that had been requested by the

Department of the Interior were exempt from disclo-

sure under Exemption 5.

Quoting Justice Scalia’s statement in United

States Department of Justice v. Julian, 486 U.S. 1,

18 n.1 (1988) (dissenting opinion), that “the most

natural meaning of the phrase ‘intra-agency memo-

randum’ is a memorandum that is addressed both to

and from employees of a single agency,” the Klamath

Court observed that some lower courts had extended

Exemption 5 to encompass “communications between

Government agencies and outside consultants hired

by them.” 532 US. at 10.

The Court in Klamath expressly refused to de-

cide whether consultants’ reports may ever be pro-

tected as “intra-agency” documents under Exemption

5, because—even if they could—“consultants whose

communications have typically been held exempt

have not been communicating with the Government

in -heir own interest or on behalf of any person or

group whose interests might be affected by the Gov-

ernment action addressed by the consultant.” 532

U.S. at 12. Because the Indian tribes clearly were

communicating in their own interest, any “consult-

ant corollary” to Exemption 5 could not apply to the

documents submitted by the tribes. Jd. at 11.

2. President Bush in November 2001 issued a

military order authorizing the creation of commis-

sions to try suspected terrorists. Detention, Treat-

ment, and Trial of Certain Non-Citizens in the War

Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13,

2001). The order directed the Secretary of Defense to

promulgate implementing regulations. Ibid.

The Department of Defense did not seek public

comment with respect to these regulations. It did,

however, solicit private comments regarding the

draft regulations from a number of private individu-

als. Thus, in a March 21, 2002, press briefing, the

Secretary of Defense expressed his personal appre-

had

ciation for the comments of “a number of non-

Defense Department individuals, most of them for-

mer government officials or judicial officers of vari-

ous types” who “just volunteered to help out and

have been enormously helpful.” U.S. Department of

Defense News Transcript, DoD News Briefing on

Military Commissions (Mar. 21, 2002), available at

www. defenselink. mil/transcripts/transcript.aspx?

transcriptid=3367. Secretary Rumsfeld identified

nine distinguished attorneys from private practice

and academia, “none of [whom] work for this de-

partrsent” who participated “without compensation”

in the development of the commissions’ procedures.

Ibid.

On July 1, 2003, the Department published its

rules governing the military commissions. See Pro-

cedures for Trials by Military Commissions of Cer-

tain Non-United States Citizens in the War Against

Terrorism, 68 Fed. Reg. 39,374 (July 1, 2003).

3. The National Institute of Military Justice

(“NIMJ”) is a non-profit organization dedicated to

improving public understanding of the military jus-

tice system and to advancing the fair administration

of military justice. Shortly after the military commis-

sion rules were published, NIMJ filed a carefully tai-

Jored FOIA request seeking records of communica-

tions between DoD personnel and members of the

public relating to the creation of the commissions

and their governing rules. NIMJ requested

all written or electronic communications that

the Department (including the Secretary and

General Counsel) has either sent to or re-

ceived from anyone (other than an officer or

an employee of the United States acting in

the course of his or her official duties) regard-

ing the President's November 13, 2001 Mili-

tary Order, the Secretary’s Military Commis-

sion Orders, and the Military Commission

Instructions. This request includes but is not

limited to suggestions or comments on poten-

tial, proposed, or actual terms of any of those

Orders or Instructions and any similar, sub-

sequent, superseding or related Orders or In-

structions, whether proposed or adopted.

App., infra, 42a-43a. The request thus specifically

excluded traditionally exempt documents such as

draft correspondence or internal communications

witiiin or among government departments, agencies,

or perscnnel.

The Government initially released nine pages of

documents in response to NIMJ’s request. Gov't Ct.

App. Br. 3.

B. The Proceedings In The District Court

After the government failed to respond in a

timely fashion to NIMJ’s administrative appeal,

NIMJ commenced this action in the District Court

for the District of Columbia under 5 U.S.C. §

552(a)(4)(B) to force the government to comply with

its FOIA obligations. App., infra, 5a.

Several months later, the government released

additional documents from the Defense Depart-

ment’s Office of General Counsel responsive to

NIMJ’s request. App., infra, 43a n.2.

The district court found that the government

failed to “compl[y] with its obligations under the

FOIA” by conducting an “inadequate” search for

documents. App., infra, 85a, 86a. “Troubled by the

government's failure to timely and adequately re-

spond to plaintiffs FOLA request,” the court ordered

the government to conduct an additional search for

responsive documents. Jd. at 86a. Several hundred

additional documents were provided to NIMJ. Govt.

Ct. App. Br. 3-4.

The government also produced a revised Vaughn

index describing 87 responsive documents that it had

either withheld or redacted. App., infra, 44a. Nine-

teen of the withheld documents are at issue in this

case, consisting of comments on draft regulations “so-

licited and received * * * from a number of non-

governmental] lawyers, who were former high rank-

ing government officials or academics or both.” Jd. at

3a.

NIMJ challenged DoD’s withholding of this cor-

respondence from volunteer private citizens. Relying

on what it believed to be binding District of Colum-

bia Circuit precedent, the district court granted

summary judgment for the government, holding that

Exemption 5 protects the documents against disclo-

sure under the FOIA. App., infra, 80a.

Citing Klamath, the district court stated that

“(t]he Supreme Court has made clear that Exemption

5 protects not only inter-agency and intra-agency

communications among employees, but also commu-

nications from outside consultants or other individu-

als hired or solicited by an agency for their views.”

App., infra, 72a. The district court concluded that

pre-Klamath decisions by the D.C. Circuit applying

Exemption 5 to documents produced by non-

government employees accordingly “remain good

law.” Id. at 73a.

The court then went on to reject several limita-

tions on the scope of Exemption 5. First, it held that

1 Although the documents at issue were submitted by

lawyers, the government did not rely on the attorney-

client privilege in opposing release of the documents in

the courts below.

Exemption 5 is not limited to “outside consultants

* * * who are paid or provide extensive service to an

agency.” App., infra, 74a n.12. Second, the court de-

clined to require that outside authors “possess exper-

tise not possessed by the agency.” Id. at 75a. Third,

the court rejected a requirement that “the defendant

must establish that the views of the non-agency at-

torneys were furnished in confidence [in order] to be

considered intra-agency documents.” Jd. at 75a n.13.

Because there was no evidence that the individuals

here “were representing their personal interests or

the interests of any clients in making their com-

ments,” the court held that the documents were ex-

empt from disclosure. Jd. at 74a.

C. The Court of Appeals Decision

The court of appeals affirmed by a divided vote.

App. infra, 1a-40a. The majority determined that the

D.C. Circuit’s pre-Klamath decisions addressing the

applicability of Exemption 5 to non-agency docu-

ments—Public Citizen, Inc. v. Department of Justice,

111 F.3d 168 (D.C. Cir. 1997); Ryan v. Department of

Justice, 617 F.2d 781 (D.C. Cir. 1980); and Formal-

dehyde Institute v. Department of Health & Human

Services, 889 F.2d 1118 (D.C. Cir. 1989)—adopted

the principle that documents “submitted by non-

agency parties in response to an agency’s request for

advice” are “covered by Exemption 5.” App., infra, 7a.

Because this Court in Klamath reserved the question

whether documents prepared by non-agency employ-

ees could be covered by Exemption 5, the majority

below “perceive[d] no basis to jettison [its] binding

Circuit precedent.” Id. at 12a.

The majority distinguished Klamath on the

ground that the commenters here were not advanc-

ing a particular interest: “[u]nlike the Indian tribes

in Klamath, the individuals DoD consulted had no

individual interests to promote in their submissions.”

App., infra, 13a. The majority acknowledged that

these individuals were “private citizens rather than

government employees or paid contract consultants,”

but saw “no reason why the absence of a contract or

compensation should differentiate them from the

‘typical’ outside agency consultants. These were not

random citizens volunteering their opinions. DoD

sought these individuals out and solicited their coun-

sel based on their undisputed experience and qualifi-

cations.” Id. at 13a-14a.

The majority stated that its determination did

not violate Klamath’s injunction to respect the lan-

guage of the statute because “DoD itself solicited the

advice contained in the documents” from the particu-

lar individuals “for the agency’s own use in promul-

gating terrorist trial commission regulations. Under

such circumstances,” the majority concluded, inter-

preting Exemption 5 to apply was consistent with the

“common sense” observation in Ryan that “[ijn the

course of its day-to-day activities, an agency often

needs to rely on the opinions and recommendations

of temporary consultants, as well as its own employ-

ees.” App., infra, 16a (quoting Ryan, 617 F.2d at

789).

The majority observed that the Ryan test re-

quires “indicia of a consultant relationship between

the outsider and the agency” and held that such a re-

lationship may be established “by the fact that the

agency seeks out the individual consultants and af-

firmatively solicits their advice in aid of agency busi-

ness.” App., infra, 19a. Because the Defense De-

partment asked the individuals to comment on the

commission procedure, Exemption 5 applied to their

communications.

Judge Tatel dissented. App., infra, 23a-40a. He

stated that “the court’s holding does exactly what the

Supreme Court forbade in [Klamath]: it makes ‘in-

tra-agency’ * * * a purely conclusory term.” Id. at

23a. Beginning his analysis with the text of the stat-

ute, Judge Tatel stated that “the most natural

meaning of the phrase “intra-agency memorandum”

is a memorandum that is addressed both to and from

employees of a single agency.” Jd. at 24a (quoting

Klamath, 532 U.S. at 9).

Judge Tatel concluded that cases extending Ex-

emption 5 to documents prepared by paid consult-

ants “certainly stretch the meaning of ‘intra-agency,”

but stil] plausibly interpret that term: “when an

agency hires consultants to perform a task, it’s not

unreasonable to say they have become part of the

agency for purposes of that project, making any docu-

ments they produce for the project ‘intra-agency.”

App., infra, 25a.

“In this case, however,” Judge Tatel continued,

“the government asks us to stretch Exemption 5 be-

yond its breaking point, to cover everyone an agency

asks for advice. The government’s argument flatly

ignores the statute’s text, as well as our obligation to

construe FOJA exemptions narrowly.” App., infra,

25a-26a (emphasis in original).

Judge Tatel explained that the D.C. Circuit’s pre-

Klamath decisions “say it makes no difference

whether the documents at issue were generated by

someone within the agency. All that matters, they

hold, is that the documents played a role in the

agency’s deliberative process, a standard indisputa-

bly met here.” App., infra, 29a. “The problem with

these cases,” he stated, “is that in Klamath the Su-

preme Court rejected exactly this type of reasoning.”

Ibid.

“(Ojur earlier cases protecting communications

from outside consultants under Exemption 5 remain

good law only to the extent they give ‘independent vi-

tality’ to the meaning of ‘intra-agency.” App., infra,

30a-3la (quoting Klamath, 532 U.S. at 12). Judge

Tatel stated that he could agree “that Exemption 5

protects documents agencies solicit from people who

could plausibly be called ‘intra-agency,’ such as paid

consultants or members of official agency committees

created under [the Federal Advisory Committee Act].

The problem, however, is that the court holds that a

document qualifies as ‘intra-agency’ if an agency so-

licits it from anyone.” App., infra, 32a (emphasis in

original). “Rather than giving ‘independent vitality’

to ‘intra-agency,’ this test redefines that term.” [bid.

“Indeed,” Judge Tatel observed,

under the court’s rule, if an agency held a

press conference and asked citizens to send

in advice, letters from everyone who re-

sponded would qualify as ‘intra-agency.’

Seeking to escape this untenable result, the

court adds a new requirement: the solicita-

tion must be ‘formal.’ Requiring formality,

however, does nothing to prevent absurd re-

sults: For example, an agency request for

advice published in the Federal Register

would be ‘formal,’ but hardly enough to make

letters sent by members of the public who re-

sponded ‘intra-agency.’ * * * The court next

suggests that a solicitation suffices if ad-

dressed to a ‘discrete group of experts.’ But a

DoD request for advice to every law professor

in the country would qualify as a request to a

‘discrete group of experts,’ yet the professors’

responses plainly would not be ‘intra-agency.’

App., infra, 33a (citations omitted).

Because “Exemption 5’s words ‘simply will not

stretch to cover this situation,’ and because the re-

sult the court reaches contravenes Klamath,” Judge

Tatel concluded that Exemption 5 does not apply to

the private citizens’ submissions. App., infra, 40a (ci-

tation omitted).

REASONS FOR GRANTING THE PETITION

The majority below adopted an extraordinarily

expansive construction of “intra-agency memoran-

dums or letters’—encompassing any submission

from any private citizen as long as it is in some way

solicited by a government employee and the author is

not self-interested. That interpretation of the statute

bears no relation to the common meaning of “intra-

agency,” is wholly inconsistent with this Court’s rea-

soning in Klamath, and will transform individual

FOIA actions into litigation quagmires investigating

whether a particular private citizen’s submission

was sufficiently tied to his or her self-interest to lose

its putative status as an “intra-agency” communica-

tion.

The dispute between the majority and the dis-

senting judge below turns entirely on their diametri-

cally opposed readings of this Court’s decision in

Klamath. Only this Court can resolve that disagree-

ment. In addition, because the D.C. Circuit is desig-

nated by Congress as the principal forum for FOIA

litigation—-and because this issue regarding the

meaning of “intra-agency” in Exemption 5 arises

with considerable frequency—the decision below will

have a very substantial continuing impact on FOIA

claims. Review by this Court is therefore plainly

warranted.

A. The Court Of Appeals’ Broad Construc-

tion Of Exemption 5 Is Inconsistent

With The Statute’s Plain Language And

This Court’s Ruling In Klamath.

Exemption 5 applies to “inter-agency or intra-

agency memorandums or letters which would not be

available by law to a party other than an agency in

litigation with the agency.” 5 U.S.C. § 552(b)(5).

“Agency,” in turn, is defined by the statute as “each

authority of the Government of the United States”

(id. § 551(1)) and “includes any executive depart-

ment, military department, Government corporation,

Government controlled corporation, or other estab-

lishment in the executive branch * * *, or any inde-

pendent regulatory agency.” Jd. § 552(f); see also id. §

551(1) (excluding Congress, the courts, and other en-

tities and authorities). Thus, as this Court observed

in Klamath, “the most natural meaning of the

phrase “intra-agency memorandum” is a memoran-

dum that is addressed both to and from employees of

a single agency.” 532 U.S. at 9 (quoting Julian, 486

at 18 n.1 (Scalia, J., joined by White & O’Connor, JJ.,

dissenting)).

Justice Scalia’s opinion in Julian recognized that

the statutory definition could in some circumstances

reach more broadly:

It is textually possible and * * * in accord

with the purpose of the provision, to regard

as an intra-agency memorandum one that

has been received by an agency, to assist it in

the performance of its own functions, from a

person acting in a governmentally conferred

capacity other than on behalf of another

agency—e.g., in a capacity as employee or

consultant to the agency, or as employee or

officer of another governmental unit (not an

agency) that is authorized or required to pro-

vide advice to the agency.

486 U.S. at 18 n.1 (dissenting opinion).

The Court in Klamath explicitly reserved the

question whether Exemption 5 applies to any docu-

ments prepared by individuals not acting in an offi-

cial governmentally-conferred capacity. The Court

held that—even if Exemption 5 does encompass some

documents prepared by non-government employees—

the exemption could not extend to documents pre-

pared by individuals “communicating with the Gov-

ernment in their own interest or on behalf of any

person or group whose interests might be affected by

the Government action addressed by the consultant.”

532 U.S. at 12.

The majority below interpreted Klamath’s hold-

ing that communications by self-interested outsiders

never qualify as “intra-agency” to mean that commu-

nications by outsiders who are not self-interested al-

ways qualify as “intra-agency.” But Klamath ex-

pressly did not decide that question. As Judge Tatel

explained in detail, moreover, the majority’s extraor-

dinarily broad construction of “intra-agency” is in-

consistent with the language of the statute and with

the Court’s reasoning in Klamath.

First, there is no way to reconcile the majority’s

expansive construction of Exemption 5 with the stat-

ute’s plain language. Justice Scalia in Julian ex-

plained how the text could be read to encompass in-

dividuals with some official governmentally-

conferred status. Under the majority’s view, how-

ever, a government official’s solicitation of informa-

tion from a private individual creates a sufficient re-

lationship between the private individual and the

government to transform a communication from that

individual into an “intra-agency” document. That

stretches the ordinary meaning of “intra-agency” far

beyond the breaking point. “Rather than giving ‘in-

dependent vitality’ to ‘intra-agency,’ this test rede-

fines that term.” App., infra, 32 (Tatel, J., dissenting)

(citation omitted). :

Second, the Klamath Court emphasized that

there is “no textual justification for draining the first

condition of independent vitality,” refusing to accept

the government’s argument “that ‘intra-agency’ is a

purely conclusory term, just a label to be placed on

any document the Government would find it valuable

to keep confidential.” 532 U.S. at 12. But the major-

ity’s constructien of the statute here rests squarely

on precisely the result-oriented approach rejected in

Klamath: that an “intra-agency” communication oc-

curs whenever the agency solicits information from

anyone, because “federal agencies occasionally will

encounter problems outside their ken, and it clearly

is preferable that they enlist the help of outside ex-

perts skilled at unravelling their knotty complexi-

ties.” App., infra, 12a. (internal quotation marks

omitted). The content of the majority’s standard is

not in any way based on the ordinary meaning of the

term Congress selected.

Third, Judge Tatel’s interpretation of the stat-

ute, by contrast, is based on the statutory language.

As Judge Tatel explained, “one can plausibly say

that some paid consultants and members of official

agency committees have come ‘within’ the agency. * *

* An agency’s mere request for advice * * * has noth-

ing to do with whether a person’s response comes

from within or outside the agency. Without some in-

dicia that the person responding is ‘within’ the

agency, such as a paid consulting contract, ‘intra-

agency has no meaning.” Jd. at 34a (dissenting opin-

ion); see also id. at 37a (“contracting with and paying

a consultant establishes a formal relationship be-

tween that person and the agency, making it at least

plausible to consider the person ‘intra-agency”).

Fourth, this Court has held repeatedly that FOIA

exemptions should “be narrowly construed.” Rose,

425 U.S. at 361; see also Klamath, 532 U.S. at 16

(exemptions should “be read strictly in order to serve

FOIA’s mandate of broad disclosure”); F'BJ v. Abram-

son, 456 U.S. 615, 630 (1982) (same). The majority’s

interpretation of Exemption 5 plainly fails this test.

Fifth, the majority’s construction of the statute

will lead to absurd results. As Judge Tatel pointed

out, “under the court’s rule, if an agency held a press

conference and asked citizens to send in advice, let-

ters from everyone who responded would qualify as

‘jntra-agency.” * * * The court [also] suggests that a

solicitation suffices if addressed to a ‘discrete group

of experts.’ But a DoD request for advice to every law

professor in the country would qualify as a request to

a ‘discrete group of experts,’ yet the professors’ re-

sponses plainly would not be ‘intra-agency.” App., in-

fra, 33a (citation omitted).?

The majority’s construction of Exemption 5 thus

will transform a statute intended to promote gov-

ernment transparency into a device to allow govern-

ment officials to conceal information from selected

individuals simply by soliciting those individuals’

views. The opportunities for abuse of the system—

concealing the views of favored individuals while

leaving the views of others available to the public—

are immense.

2 The majority disputed (App., infra, 20a-2la) Judge

Tatel’s explanation of the implications of its broad inter-

pretation of exemption five, but was unable to explain

why its rationale would not lead to the results he pre-

dicted. See id. at 33a-34a (dissenting opinion).

Moreover, the majority’s standard will lead to a

litigation quagmire. Members of the public seeking

access to the information provided by these private

individuals would be forced to demonstrate that the

individuals had an “individual interest[] to promote”

(App., infra, 13a)—requiring intrusive discovery as

well as continued judicial elaboration regarding the

type of personal “interest” sufficient to remove a pri-

vate citizen’s communications from the protection of

Exemption 5: is financial interest necessary, or

would political or personal interest suffice? What

about a deeply-held scholarly, religious, or moral per-

spective or a settled view about the role and respon-

sibility of government—are those sufficient “inter-

ests”?

This Court should grant review to correct the

plainly erroneous interpretation of the statute

adopted by the majority below.

B. Review Is Appropriate Because Only

This Court Can Correct The Flawed In-

terpretation Of Klamath Adopted By

The Principal Circuit For FOIA Litiga-

tion.

The majority and dissenting opinions below re-

flect a fundamental disagreement regarding the

proper interpretation of this Court’s decision in

Klamath. Only this Court can correct the majority’s

flawed conclusion, an error that will have a very sub-

stantial impact on FOIA litigation given the D.C.

Circuit’s principal role in adjudicating FOIA dis-

putes.

The majority rested its decision squarely on its

conclusion that neither Klamath’s holding nor its

reasoning warranted overruling prior D.C. Circuit

caselaw interpreting the “intra-agency” requirement

of Exemption 5. App., infra, 12a. Indeed, the major-

ity refused to “construe afresh the statutory lan-

guage” in light of this Court’s reasoning in Klamath,

concluding that “[t]o the extent [the prior decisions]

are not ‘effectively overrule[d]’ by Klamath * * * we

are bound by their holdings.” Jd. at 12a n.7.

Judge Tate] reached the opposite conclusion, de-

termining that the reasoning of the prior D.C. Cir-

cuit decisions “is precisely what Klamath rejects: the

‘argument skips a necessary step, for it ignores the

first condition of Exemption 5’ and makes ‘intra-

agency’... a purely conclusory term.” App., infra,

3la (quoting Klamath, 532 U.S. at 12); see also App.,

infra, 36a (dissenting opinion) (Klamath decided

“that courts may not ‘ignore the first condition of Ex-

emption 5’ * * *, precisely what [the D.C. Circuit] did

in Ryan, Formaldehyde, and Public Citizen”;

“Klamath eviscerates the reasoning in the Ryan line

of cases”).

This Court’s intervention is urgently needed to

provide guidance regarding the proper interpretation

of its decision in Klamath. Indeed, the majority

makes clear the D.C. Circuit’s resolve to continue to

adhere to its pre-Klamath precedent regarding Ex-

emption 5 in the absence of further guidance from

this Court.

The D.C. Circuit’s erroneous conclusion with re-

spect to this issue will have a particularly significant

impact because of that court’s principal role in adju-

dicating FOIA disputes. Every FOIA action may be

brought in the District of Columbia. 5 U.S.C. §

552(a)(4)(B). Moreover, “[bJecause thzre are a num-

ber of federal government agencies : .ated in Wash-

ington, D.C., it is not surprising that the majority of

the caselaw interpreting FOIA has been decided by

the D.C. Circuit.” Miccosukee Tribe of the Indians of

Florida v. United States, 516 F.3d 1235, 1257 n.23

(11th Cir. 2008): Absent a grant of review by this

Court, therefore, the erroneous decision below will

affect a very substantial percentage of the FOIA ac-

tions litigated in the federal courts.

C. Questions Regarding The Application Of

Exemption 5 To Documents Submitted

By Persons Outside The Government

Arise With Considerable Frequency.

The question presented here—the standard for

determining whether a document prepared by a pri-

vate individual qualifies as an “intra-agency” com-

munication—arises with considerable frequency in

FOIA litigation. After all, there are “literally millions

of documents and memoranda of various kinds on a

myriad of subjects which repose in the files of execu-

tive departments and independent agencies * * *

which were created by someone outside the executive

branch but in response to an initiative from the ex-

ecutive branch.” Ryan, 617 F.2d at 790.

In the last two years alone, there have been a

significant number of decisions addressing the issue.

See Information Network for Responsible Mining

(“INFORM”) v. Dep't of Energy, No. 06-CV-02271-

REB, 2008 WL 762248, at *7 (D. Colo. Mar. 18, 2008)

(exempting documents submitted by government-

hired consultant “when the records submitted by out-

side consultants played essentially the same part in

an agency’s process of deliberation as documents pre-

pared by agency personnel might have done and

when the outsider does not represent an interest of

its own, or the interest of any other client, when it

advises the agency that hires it”); Citizens for Re-

sponsibility & Ethics in Washington v. Dep't of

Homeland Security, 514 F.Supp.2d 36, 44 (D.D.C.

2007) {exempting documents “when an agency solic-

its opinions from and recommendations by tempo-

rary, outside consultants” hired by the government);

People For The American Way Foundation v. Dep't of

Educ., 516 F.Supp.2d 28, 36-39 (D.D.C. 2007) (reject-

ing an Exemption 5 claim for documents exchanged

between the U.S. Department of Education and the

D.C. Mayor’s Office); Board of County Comm'rs v.

Dep't of the Interior, No. 2:06-CV-209-TC, 2007 WL

2156613, at *11 (D. Utah July 26, 2007) (holding Ex-

emption 5 inapplicable because “[e]ven though he

may not have been competing with others for grazing

permits * * *, [the private citizen’s] deep-seated

views regarding the retirement of grazing permits

through market-based principles shows that he is

communicating with the DOI in the interest of his

deep-seated views, not as a disinterested expert”);

Nulankeyutmonen Nkihtaqmikon v. Bureau of In-

dian Affairs, 493 F. Supp. 2d 91, 106 (D.Me. 2007)

(finding “hybrid” group to be an agency where some

members were appointed by the President); Missouri

Coalition for Environment Foundation v. Army Corps

of Eng’rs, No. 4:05CV02039 FRB, 2007 WL 869487,

at *5 (E.D.Mo. Mar. 20, 2007) (exemption applicable

because outside group was a hired government con-

sultant); Sakamoto v. Envircnmental Protection

Agency, 443 F.Supp.2d 1182, 1199-1200 (N.D. Cal.

2006) (same); Votehemp, Inc. v. Drug Enforcement

Admin., No. 02-985 (RBW), 2006 WL 1826007, at *7

(D.D.C. June 30, 2006) (holding that “the document

qualifies as an intra-agency memoranda even though

it was drafted by an outside consultant” hired by the

government); Natural Resources Defense Council v.

U.S. Dept. of Defense, 442 F.Supp.2d 857, 867 (C.D.

Cal. 2006) (finding insufficient evidence to support

exemption and noting “[a]lthough courts have upheld

the application of Exemption 5 to documents gener-

ated by or disclosed to non-government parties such

as contractors and consultants, they have done so

generally when those parties were serving as agents

of the government agency and were directly involved

in the internal agency decision-making that FOIA

protects”).

Significantly, the decisions outside the District of

Columbia Circuit reflc ct the distinction identified by

Justice Scalia in Julian and adopted by Judge Tatel:

documents prepared by paid consultants or others

with an officially-conferred government status are

found to be “intra-agency” while documents prepared

by purely private citizens are not. The rule adopted

by the majority below is thus out of step with the

principles applied by other courts in these cases that

arise with substantial frequency. Review by this

Court is appropriate to correct the majority’s stark

misinterpretation of Klamath with respect to this

important issue of federal law.

‘

}

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

DAN M. KAHAN ANDREW J. PINCUS

Yale Law School Counsel of Record

Supreme Court Clinic | CHARLES A. ROTHFELD

127 Wall Street Mayer Brown LLP

New Haven, CT 06511 1909 K Street, NW

(203) 432-4800 Washington, DC 20006

(202) 263-3000

Counsel for Petitioner

JULY 2008

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIR-

CUIT

Argued November 5, 2007

Decided January 11, 2008

No. 06-5242

NATIONAL INSTITUTE OF

MILITARY JUSTICE,

APPELLANT

UNITED STATES

DEPARTMENT OF DEFENSE,

APPELLEE

Appeal from the United States District Court for

the District of Columbia

(No. 04cv00312)

Before: HENDERSON and TATEL, Circuit

Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge

HENDERSON.

Dissenting opinion filed by Circuit Judge

TATEL.

KAREN LECRAFT HENDERSON, Circuit

Judge: The National Institute of Military Justice

(NIMJ) filed this action under the Freedom of Infor-

mation Act (FOIA), 5 U.S.C. § 552, seeking, inter

alia, nineteen records containing the opinions and

recommendations of non-governmental lawyers

whose advice the United States Department of De-

fense (DoD) solicited to promulgate regulations es-

tablishing terrorist trial commissions. The district

court granted summary judgment in DoD’s favor,

concluding that the documents are exempt from dis-

closure under FOIA Exemption 5, id. § 552(b)(5). See

Nati Inst. of Military Justice v. U.S. Dep't of Defense,

404 F. Supp. 2d 325, 342-47 (D.D.C. 2005). We agree

that the documents are protected by FOIA Exemp-

tion 5 and therefore affirm the judgment of the dis-

trict court.

On November 13, 2001 President George W.

Bush issued a Military Order to establish military

commissions to try terrorists. Detention, Treatment,

and Trial of Certain Non-Citizens in the War Against

Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001). The

Military Order stated that any person subject to it—

i.e., any non-citizen who the President determines

there is reason to believe has been a member of al

Qaeda, has engaged in acts of international terror-

ism against the United States or has knowingly har-

bored such persons—‘shall, when tried, be tried by

military commission for any and all offenses triable

by military commission that such individual is al-

leged to have committed.” Jd. at 57,834. The Mili-

tary Order further directed that the Secretary of De-

fense “shall issue such orders and regulations, in-

cluding orders for the appointment of one or more

military commissions, as may be necessary to carry

out” the trials. /d.!

1 The Military Order further provided that the orders

and regulations:

shall include, but not be limited to, rules for the conduct

of the proceedings of military commissions, including

pretrial, trial, and post-trial procedures, modes of proof,

issuance of process, and qualifications of attorneys,

which shall at a minimum provide for—

(1) military commissions to sit at any time and any

place ...;

In the course of promulgating regulations,2? DoD

solicited and received comments from a number of

non-governmental lawyers, who were former high

ranking governmental officials or academics or both.

According to DoD, it

(2) a full and fair trial, with the military commis-

sion sitting as the triers of both fact and law;

(3) admission of such evidence as would ... have

probative value to a reasonable person;

(4) in a manner consistent with the protection of in-

formation classified or classifiable under Executive

Order 12958 of April 17, 1995, as amended, or any

successor Executive Order, protected by statute or

rule from unauthorized disclosure, or otherwise pro-

tected by law, (A) the handling of, admission into

evidence of, and access to materials and information,

and (B) the conduct, closure of, and access to proceed-

ings;

(5) conduct of the prosecution by one or more attor-

neys designated by the Secretary of Defense and con-

duct of the defense by attorneys for the individual

subject to this order;

(6) conviction only upon the concurrence of two-

thirds of the members of the commission present at

the time of the vote, a majority being present;

(7) sentencing only upon the concurrence of two-

thirds of the members of the commission present at

the time of the vote, a majority being present; and

(8) submission of the record of the trial, including

any conviction or sentence, for review and final deci-

sion by [the President] or by the Secretary of Defense

if so designated by [the President] for that purpose.

66 Fed. Reg. at 57,834-85.

2 The regulations issued in final form on July 1, 2003. See

68 Fed. Reg. 39,397 (July 1, 2003).

sought the opinions and recommendations of

these outside consultants because their pre-

vious experience in the government andor

their expertise made them uniquely qualified

to provide advice to the Genera! Counsel’s of-

fice on the Military Commissions procedures.

Each was asked to provide their comments

on the proposed Military Commission proce-

dures.

Decl. of Christine S. Ricci, DoD Assoc. Dep. Gen.

Counsel, (Ricci Decl.) 10 (Mar. 9, 2005). Although

the consultants were “not paid for their services,”

there was “an understanding that they w[ould] con-

sult and advise on a continuing basis.” Decl. of Karen

L. Hecker, Assoc. Dep. Gen. Counsel, Office of Gen.

Counsel, DoD, (Hecker Decl.) 2 (July 18, 2005).

There was also “an understanding that the contents

of the consultations would not be released publicly.”

‘ecl. of Paul W. Cobb, Jr., former Dep. Gen. Counsel,

Office of Gen. Counsel, DoD, (Cobb Decl.) 3 (Feb. 16,

2005).

On October 3, 2003, NIMJ submitted a FOIA re-

quest to DoD seeking

all written or electronic communications that

the Department (including the Secretary and

General Counsel) has either sent to or re-

ceived from anyone (other than an officer or

employee of the United States acting in the

course of his or her official duties) regarding

the President’s November 13, 2001 Military

Order, the Secretary’s Military Commission

3 The views of individuals who were “not consulted with

on a continuing basis or with the understanding and ex-

pectation that their comments would be kept in confi-

dence” were not withheld as exempt. Hecker Decl. 3-4.

Orders, and the Military Commission In-

structions. This request includes but is not

limited to suggestions or comments on poten-

tial, proposed, or actual terms of any of those

Orders or Instructions and any similar, sub-

sequent, superseding or related Orders or In-

structions, whether proposed or adopted.

Compl. 4 5 (quoting FOIA Request Letter, Oct. 3,

2003); see Natl Inst. of Military Justice, 404 F. Supp.

2d at 330. In response, DoD released numerous

documents but withheld others it considered exempt,

including the nineteen documents NIMJ now seeks

which DoD withheld as exempt under FOIA Exemp-

tion 5.

On February 26, 2004, NIMJ filed this action in

the district court seeking the withheld documents.

In an opinion and order filed December 16, 2005, the

district court granted partial summary judgment in

DoD’s favor, concluding, inter alia, that the nineteen

documents are exempt from disclosure, as claimed,

under FOIA Exemption 5. Nat? Inst. of Military Jus-

tice, 404 F. Supp. 2d at 342-47. In an opinion and

order filed June 12, 2006, the district court granted

final summary judgment in DoD’s favor and this ap-

peal followed.

Il.

NIMJ appeals the district court’s grant of sum-

mary judgment as to the nineteen documents the

court held exempt under FOIA Exemption 5. Ex-

emption 5 provides that FOIA “does not apply to

matters that are .. . inter-agency or intra-agency

memorandums or letters which would not be avail-

able by law to a party other than an agency in litiga-

tion with the agency.” 5 U.S.C. § 552(b)(5). Relying

heavily on the United States Supreme Court’s deci-

sion in Department of the Interior v. Klamath Water

Users Protective Ass'n, 532 U.S. 1 (2001), NIMJ as-

serts that Exemption 5 does not apply because the

documents sought are not “inter-agency” or “intra-

agency,” as required by the statutory language.4 We

reject its challenge because our Circuit precedent in-

terprets “intra-agency” to include agency records

containing comments solicited from nongovernmen-

tal parties such as the lawyers whose counsel] DoD-

sought—and, more to the point, our precedent is not

inconsistent with Klamath.

In Ryan v. Department of Justice, 617 F.2d 781

(D.C. Cir. 1980), we held that documents submitted

by United States senators in response to a question-

naire they received from the Department of Justice

about procedures for selecting and recommending po-

tential judicial nominees were exempt from FOIA

disclosure under Exemption 5. We rejected the FOIA

requesters’ argument that, because the senators

were “not agencies within the meaning of the FOIA,”

the withheld questionnaires “c[ould ]not be termed

‘inter-agency’ or ‘intra-agency’ ” within the meaning

of Exemption 5, reasoning:

4 There is no dispute that the withheld documents satisfy

the second requirement in Exemption 5—that they be

“unavailable by law” under one of the established civil

discovery privileges—here, under the “deliberative proc-

ess” privilege. See Dep't of Interior v. Klamath Water Us-

ers Protective Ass'n, 532 U.S. 1, 8-9 (2001). To qualify for

Exemption 5 protection under the deliberative process

privilege, “an agency’s materials must be both ‘predeci-

sional’ and a part of the ‘deliberative process.’” Formal-

dehyde Inst. v. Dep't of Health & Human Servs., 889 F.2d

1118, 1121 (D.C. Cir. 1989) (citing NLRB v. Sears, Roe-

buck & Co., 421 U.S. 132, 151-52 (1975)). The withheld

documents are plainly both.

When interpreted in light of its purpose, .. .

the language of Exemption 5 clearly em-

braces this situation. The exemption was

created to protect the deliberative process of

the government, by ensuring that persons in

an advisory role would be able to express

their opinions freely to agency decision-

makers without fear of publicity. In the

course of its day-to-day activities, an agency

often needs to rely on the opinions and rec-

ommendations of temporary consultants, as

well as its own employees. Such consulta-

tions are an integral part of its deliberative

process; to conduct this process in public view

would inhibit frank discussion of policy mat-

ters and likely impair the quality of deci-

sions.

Ryan, 617 F.2d at 789-90 (citation footnote omitted).

Noting that “efficient government operation requires

open discussions among all government policy-

makers and advisors, whether those giving advice

are officially part of the agency or are solicited to

give advice only for specific projects,” we concluded:

“When an agency record is submitted by outside.con-

sultants as part of the deliberative process, and it

was solicited by the agency, we find it entirely rea-

sonable to deem the resulting document to be an ‘in-

tra-agency’ memorandum for purposes of determin-

ing the applicability of Exemption 5.” Jd. at 790. In-

tegral to the court’s analysis was the fact that the

documents sought “were generated by an initiative

from the Department of Justice, i.e., the question-

naire sent out by the Department to the Senators.”

Id.5

In Formaldehyde Institute v. Department of

Health & Human Services, 889 F.2d 1118 (D.C. Cir.

1989), we clarified that Exemption 5 extends to

documents received from private, nongovernmental

parties. In particular, we concluded the exemption

protected documents containing comments of two

private referees for the Americai: Journal of Epide-

miology on a report submitted for publication by a

staff member of the Centers for Disease Control

(CDC). Relying largely on Ryan, we found immate-

rial “the absence of any formal relationship” between

the reviewers and the Department of Health and

Human Services (HHS), 889 F.2d at 1123, explaining

that “ ‘[w]hether the author is a regular agency em-

ployee or a temporary consultant is irrelevant; the

pertinent element is the role, if any, that the docu-

ment plays in the process of agency deliberations,’ ”

id. -at 1122 (quoting CNA Fin. Corp. v. Donovan, 830

F.2d 1132, 1161-62 (D.C. Cir. 1987), cert. denied, 485

U.S. 977 (1988)).

More recently, in Public Citizen, Inc. v. Depart-

ment of Justice, 111 F.3d 168 (D.C. Cir. 1997), we

held exempt from disclosure records containing

5 The court observed that “[t]he questionnaire plus re-

plies must correspond in origin and process to literally

millions of documents and memoranda of various kinds

on a myriad of subjects which repose in the files of the ex-

ecutive departments and independent agencies, i.e.,

memoranda which were created by someone outside the

executive branch but in response to an initiative from the

executive branch,” noting that “(flor example, the De-

partment of Agriculture must have bales of information in

response to questionnaires.” Ryan, 617 F.2d at 790 &

n.29.

communications among former President Reagan,

the Nationa] Archives and the Department of Justice

and among former President Bush and the same

agencies regarding electronic records of each of the

two Presidents’ administrations. Acknowledging

that “Public Citizen is doubtless right that a former

President is not an agency under FOIA,” we affirmed

that “records of communications between an agency

and outside consultants qualify as ‘intra-agency’ for

purposes of Exemption 5 if they have been ‘created

for the purpose of aiding the agency’s deliberative

process.’” Pub. Citizen, 111 F.3d at 170 (quoting Dow

Jones & Co. v. Dep't of Justice, 917 F.2d 571, 575

(D.C. Cir. 1990) (emphasis by Dow Jones court)) (cit-

ing CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1161

(D.C. Cir. 1987)).

Taken together, the foregoing cases compel us to

conclude that documents such as the ones here—

submitted by non-agency parties in response to an

agency’s request for advice—are covered by Exemp-

tion 5. NIMJ attempts to distinguish those cases fac-

tually but to no avail. NIMJ first asserts, for exam-

ple, that neither Ryan nor Public Citizen involved “

‘ordinary private citizen[s],’ ” Opening Br. at 14

(quoting Pub. Citizen, 111 F.3d at 170)—but this ar-

gument overlooks the fact that Formaldehyde Insti-

tute did involve private citizens (two outside refe-

rees). NIMJ also contends that the “consultative re-

lationship” here is not, as it was in Public Citizen,

“mandated by statute,” id.—but neither was it in ei-

ther Ryan or Formaldehyde Institute.6 See Ryan, 617

6 NIMJ asserts, somewhat inaccurately, that “this Court

in Formaldehyde Institute focused on the statutory man-

date underlying the consultative process at issue.” Open-

ing Br. at 16-17. In that case, however, it was the deci-

sion, not the consultation, that was statutorily mandated.

10a

F.2d at 784 (questionnaires sent to senators in re-

sponse to Executive Order No. 12097 directing U.S.

Attorney General to assist in promulgating “stan-

dards and guidelines for the selection of nominees for

United States district court judgeships,” 43 Fed. Reg.

52,455, 52,455 (Nov. 13, 1978)); Formaldehyde Inst.,

889 F.2d at 1119 (reviewers commented in response

to CDC employee’s submission of article to private

journal).

NIMJ next asserts that the cited Circuit prece-

dents, even if otherwise controlling, have been “su-

perseded” by the Supreme Court’s decision in

Klamath. Again we disagree.

in Klamath, the Court concluded that Exemption

5 does not protect documents submitted by Indian

Tribes to the Department of the Interior, which

documents addressed tribal interests that were then

the subject of state and federal water allocation pro-

ceedings. In rejecting the Government’s exemption

claim, the Court focused on the language in Exemp-

tion 5 requiring that exempt documents be either

“inter-agency or intra-agency,” 532 U.S. at 9, and

emphasized that there is “no textual justification for

draining the first condition of independent vitality,”

id. at 12. Noting that the statute was silent “about

communications with outsiders,” the Court observed

that “some Courts of Appeals have held that in some

circumstances a document prepared outside the Gov-

ernment may nevertheless qualify as an ‘intra-

See Formaldehyde Inst., 898 F.2d at 1124 (“Thus, Con-

gress has directed HHS to make precisely the kind of ‘de-

liberative’ decision HHS made as a result of a process

that involved HHS’ receipt of the Review Letter.” (empha-

sis in original)). In this case, an equally “deliberative” de-

cision was mandated by the Military Order.

lla

agency memorandum under Exemption 5” under the

so-called “consultant corollary” to Exemption 5. Jd. at

9. “Typically,” the Court added, “courts taking [this]

view have held that the exemption extends to com-

munications between Government agencies and out-

side consultants hired by them.” Jd. “In such cases,”

the Court noted, “the records submitted by outside

consultants played essentially the same part in an

agency's process of deliberation as documents pre-

pared by agency personnel might have done,” not-

withstanding the consultants “were independent con-

tractors and were not assumed to be subject to the

degree of control that agency employment could have

entailed” and they were not necessarily “devoid of a

definite point of view.” Jd. The Court concluded,

however, that the Indian Tribes in Klamath were not

analogous to government consultants.

The Court explained that “the fact about the con-

sultant that is constant in the typical cases is that

the consultant does not represent an interest of its

own, or the interest of any other client, when it ad-

vises the agency that hires it.” Id. at 10-11. “Its only

obligations are to truth and its sense of what good

judgment calls for, and in those respects the consult-

ant functions just as an employee would be expected

to do.” Jd. at 11. By contrast the Indian Tribes “nec-

essarily communicate with the Bureau with their

own, albeit entirely legitimate, interests in mind.” Jd.

at 12. Although concluding that “this fact alone dis-

tinguishes tribal communications from the consult-

ants’ examples recognized by several Courts of Ap-

peals,” the Court further found that “the distinction

is even sharper, in that the [Indian] Tribes are self-

advocates at the expense of others seeking benefits

inadequate to satisfy everyone.” Jd. Finding the cir-

cuit cases on outside consultants thus distinguish-

12a

able, the Court expressly declined to decide whether

such consultants’ reports “may qualify as intra-

agency under Exemption 5.” Id. at 12.

Given the Supreme Court’s disclaimer and its

reasoning, we perceive no basis to jettison our bind-

ing Circuit precedent. See United States v. Carson,

455 F.3d 336, 384 n.43 (D.C. Cir. 2006) (“[W]e are, of

course, bound to follow circuit precedent absent con-

trary authority from an en banc court or the Su-

preme Court.” (citing Brewster v. Comm’, 607 F.2d

1369, 1373 (D.C. Cir. 1979))).? It remains true that

“federal agencies occasionally will encounter prob-

lems outside their ken, and it clearly is preferable

that they enlist the help of outside experts skilled at

unravelling their knotty complexities.’ ” Formalde-

hyde Inst., 889 F.2d at 1122 (quoting CNA Fin. Corp.

v. Donovan, 830 F.2d 1132, 1162 (D.C. Cir. 1987)). It

7 The dissent contends we should leapfrog our precedent

and construe afresh the statutory language, Dissent at

2—but we do not write on a clean slate. As we have re-

counted, in previous opinions this Circuit has repeatedly

interpreted Exemption 5 to extend to documents gener-

ated by non-agency individuals under our consultant cor-

ollary. To the extent they are not “effectively overrule[d}”

by Klamath—and we do not believe that they are as we

apply them—we are bound by their holdings. See United

Staies v. Williams, 194 F.3d 100, 105 (D.C. Cir. 1999)

(stating whether Supreme Court opinion supersedes Cir-

cuit precedent interpreting statute depends on whether

opinion “effectively overrules, i.e., “eviscerate[s]” prece-

dent and concluding: “That the Supreme Court had

doubts about the constitutionality of [a] statute, doubts

that it never had to resolve, is simply too thin a reed to

permit a panel of this court to find similar doubts in a dif-

ferent statute and, based on those doubts, to depart from

circuit precedent expressly interpreting the statute . . . .”)

(internal quotation omitted).

;

13a

was plainly preferable in this case for DoD to consult

as widely as possible in order to fairly but effectively

try terrorists in the aftermath of September 11,

2001. Unlike the Indian tribes in Klamath, the indi-

viduals DoD consulted had no individual interests to

promote in their submissions, as NIMJ itself con-

cedes. See Reply Br. at 4 n.1 (“The government is

correct that NIMJ has made no suggestion of per-

sonal interest in these proceedings, nor does it intend

to impugn the integrity of the distinguished indi-

viduals at issue.”); cf. Cobb. Decl. 4 (stating that in

addition to the “few written comments .. . received

from individual lawyers who had been asked by the

General Counsel to provide confidential legal

views’ —comments which NIMJ now seeks—“[m]any

more comments came from members of the public or

organizations with an interest in these matters, like

Human Rights Watch or the American Bar Associa-

tion”—“[s]ome of these comments were solicited;

many were not’—comments for which DoD did not

claim the Exemption) (emphasis added). For this

reason, the case before us is readily distinguishable

from Klamath, in which “the dispositive point [was]

that the apparent object of the Tribe’s communica-

tions is a decision by an agency of the Government to

support a claim by the Tribe that is necessarily ad-

verse to the interests of competitors.” Alamath, 532

U.S. at 14. Further, although the individuals DoD

consulted are, as NIMd notes, private citizens rather

than government employees or paid contract con-

sultants, we see no reason why the absence of a con-

tract or compensation should differentiate them from

the “typical” outside agency consultants. These were

not random citizens volunteering their opinions.

DOD sought these individuals out and solicited their

counsel based on their undisputed experience and

l4a

qualifications. See Ricci Decl. 10-11).8 Their contri-

butions to DoD’s deliberation in promulgating regu-

lations were no less valuable or confidential for the

lack of compensation or formal] contract.

Our established line of consultant cases is all the

more compelling given that we have acknowledged

the survival of our “consultant corollary” in the wake

of Klamath. In Judicial Watch, Inc. v. Department of

Energy, 412 F.3d 125 (D.C. Cir. 2005), two public in-

terest organizations sought disclosure of documents

held by eight federal] agencies. The documents had

been prepared by the National Energy Policy Devel-

opment Group (NEPDG), which was established by

the President and composed of high ranking federal

8 They were an undisputedly distinguished group of indi-

viduals: a former DoD General Counsel,-a former Secre-

tary of the United States Department of Transportation, a

former Legal Counsel to the President, a former Director

of the Central Intelligence Agency and the Federal Bu-

reau of Investigation, a former Secretary of the Army, a

former Assistant Tria] Counsel at the Nuremberg Inter-

national War Trials, a former Special Counsel to the DoD

General Counsel, a former Federal Communications

Commission Chairman, a former Deputy Chief of the

Fraud Section in the Department of Justice Criminal Di-

vision, a former DoD Deputy General Counsel, a former

professor at the United States Naval War College and a

member of the Secretary of State’s Advisory Committee

for International Law and the DoD Defense Policy Board,

and a law professor and former Director of the American

Law Institute. Second Vaughn Index of Docs. Withheld,

filed in NIMJ v. DoD, No. 04-312 (D.D.C. Mar. 9, 2005).

® The agencies were: the United States Departments of

Agriculture, Commerce, Energy, the Interior, Transporta-

tion and the Treasury, the Environmental Protection

Agency and the Federal Emergency Management Agency.

Judicial Watch, 412 F.3d at 127.

l5da

officials and employees detailed from federal agen-

cies. We concluded that the withheld documents

were protected under Exemption 5 notwithstanding

NEPDG did not qualify as an “agency” under FOIA

(“because its sole function [was] to advise and assist

the President,” 412 F.3d at 129) and it did not pre-

pare the documents for an agency. We there ac-

knowledged Klamath’s admonition that, to be. pro-

tected by Exemption 5, a document must not only be

pre-decisicnal and deliberative but “by the terms of

Exemption 5, it must also be an ‘inter-agency’ or an

‘intra-agency’ record,” 412 F.3d at 129 (citing

Klamath, 532 U.S. at 9). We nonetheless found that

“fo]Jur interpretation of Exemption 5”—that docu-

ments held by agencies but prepared by the non-

agency NEPDG come within Exemption 5’s protec-

tion—‘“is not inconsistent with its textual limitation

to ‘intra-agency’ or ‘inter-agency’ communications’;

“{(rjather it follows from the principle, well estab-

lished in this Circuit, that a document need not be

created by an agency or remain in the possession of

the agency in order to qualify as ‘intra-agency.’” 7d.

at 130. To exemplify this principle, the court quoted

Ryan’s dispositive determination: “When an agency

record is submitted by outside consultants as part of

the deliberative process, and it was solicited by the

agency, we find it entirely reasonable to deem the re-

sulting document to be an ‘intra-agency’ memoran-

dum for purposes of determining the applicability of

Exemption 5.” Ryan, 617 F.2d at 790, quoted in Ju-

dicial Watch, 412 F.3d at 130 (concluding that “[nJot

to treat in the same way documents shared with or

received from the NEPDG, a body established by the

President solely to advise him, and composed en-

tirely of federal officials, would be anomalous in-

16a

deed.” (internal citation omitted)). We base our deci-

sion here on the same “well established” principle.

Notwithstanding this court has itself affirmed

post-Klamath the continuing validity of the Ryan

line of cases, NIMJ offers two particular arguments

to support its view that Klamath supersedes Circuit

precedent. We find neither one persuasive.

First, NIMe contends that the Klamath Court’s

admonition to give “independent vitality” to the

statutory terms “inter-agency” and “intra-agency”

forecloses exempting documents an agency receives

from private citizens as such records are neither in-

ter- nor intra-agency. Contrary to NIMJ’s conten-

tion, our continued adherence to the consultant corol-

lary does not diminish the “independent vitality” of

the statutory terms, as we made clear in Judicial

Watch. In Ryan we explained that “[ijn the course of

its day-to-day activities, an agency often needs to

rely on the opinions and recommendations of tempo-

rary consultants, as well as its own employees,” 617

F.2d at 789, and it is “entirely reasonable” to adopt a

“common sense interpretation of ‘intra-agency’ ” that

encompasses the advice submitted by such tempo-

rary consultants. In this case, DoD itself solicited

the advice contained in the documents from the indi-

vidual nongovernmental lawyers for the agency’s

own use in promulgating terrorist trial commission

regulations. Under such circumstances, it is consis-

tent with Ryan’s “common sense” interpretation to

deem the documents “intra-agency” so as to come

within Exemption 5’s protection. And it is likewise

consistent with Klamath’s directive to hew to the

language of the statute. Indeed, Klamath itself ac-

knowledges that disinterested outside consultants

“may be enough like the agency’s own personnel to

17a

justify calling their communications intra-agency.”

532 U.S. at 12.19

Second, NIMJ contends that Klamath expressly

calls into question the holdings in Ryan and Public

Citizen. It is true that the Court in Klamath stated

that the two decisions “arguably extend beyond what

we have characterized as the typical examples” of

agency consultants but, consistent with its reasoning

in the case before it, the Court expressed concern

only with regard to the potential self-interests of the

“consultants” involved in those cases. See Klamath,

532 U.S. at 12 n.4 (noting the former presidents in

Public Citizen “had their own, independent interests”

and ‘n Ryan, the senators’ questionnaire responses

were held exempt “even though we would expect a

Senator to have strong personal views on the mat-

ter’). As we have already noted, however, there is no

dispute that the individuals DoD consulted were not

pursuing interests of their own so as to run afoul of

Klamath’s concern. Thus, the extent to which either

Ryan or Public Citizen may have extended Exemp-

tion 5 beyond its permissible scope based on their pe-

culiar facts is an issue we need not and do not decide

here.

'© The dissent seems to suggest that the people consulted

must themselves be “within” the agency, see Dissent at

10, but the statute requires only that the withheld docu-

ments (“memorandums or letters”) be “intra-agency.”

Consultants are in some sense necessarily “outside”

rather than “inside” the agency but the documents they

produce may nonetheless qualify as “intra-agency” docu-

ments. See Klamath, 532 U.S. at 10 (noting that in circuit

consultant corollary decisions “the records submitted by

outside consultants played essentially the same part in an

agency’s process of deliberation as documents prepared by

agency personnel might have done”) (emphasis added).

18a

In applying the Ryan line of cases, we emphasize

two factors in their analyses that support our con-

tinued application of the consultant corollary. First,

as our cases make clear, the expectation that com-

munications will remain confidential is crucial to

eliciting candid and honest advice from outside con-

sultants. ' See Ryan, 617 F.2d at 789-90

(“[C]onsultations [with temporary consultants] are

an integral part of [an agency’s] deliberative process;

to conduct this process in public view would inhibit

frank discussion of policy matters and likely impair

the quality of decisions.”); Formaldehyde Inst., 889

F.2d at 1122 (“A predecisional document is a part of

the ‘deliberative process, if ‘the disclosure of [the]

materials would expose an agency’s decisionmaking

process in such a way as to discourage candid discus-

sion within the agency and thereby undermine the

agency's ability to perform its functions.’ ” (quoting

Dudman Commce'ns Corp. v. Dep't of Air Force, 815

F.2d 1565, 1568 (D.C. Cir. 1987))) (emphasis and al-

teration in Formaldehyde Inst.); Pub. Citizen, 111

F.3d at 170 (“[FJor a President to be able to give ade-

quate assurances of confidentiality to his advisors,

the assurances must last beyond his tenure.”); Judi-

cial Watch, 412 F.3d at 129 (Exemption 5’s “inclusion

in the statute ‘reflect(s] the legislative judgment that

the quality of administrative decision-making would

be seriously undermined if agencies were forced to

‘operate in a fishbowl!’ because the full and frank ex-

change of ideas on legal or policy matters would be

impossible.’ ” (quoting Tax Analysts v. IRS, 117 F.3d

607, 617 (D.C. Cir.1997)) (alteration in Judicial

Watch); see also NLRB v. Sears, Roebuck & Co., 421

U.S. 132, 150 (1975) (“ ‘(h)uman experience teaches

that those who expect public dissemination of their

remarks may well temper candor with a concern for

19a

appearances... to the detriment of the decisionmak-

ing process’ ” (quoting United States v. Nixon, 418

U.S. 683, 705 (1974)) (alteration in Sears)); see also

Hecker Decl. 3 (“The public disclosure of these mate-

rials would discourage the frank, open discussions on

these issues by these individuals.”).

Second, throughout the Ryan line of cases, there

have been some indicia of a consultant relationship

between the outsider and the agency. Typically the

relationship is evidenced by the fact that the agency

seeks out the individual consultants and affirma-

tively solicits their advice in aid of agency business,

as DoD did here. See Ryan, 617 F.2d at 790 (“When

an agency record is submitted by outside consultants

as part of the deliberative process, and it was solic-

ited by the agency, we find it entirely reasonable to

deem the resulting document to be an ‘intra-agency’

memorandum for purposes of determining the appli-

cability of Exemption 5.” (emphasis added)); id. (“We

cannot overlook the fact that the documents here

were generated by an initiative from the Department

of Justice, t.e., the questionnaire sent out by the De-

partment to the Senators.”); Formaldehyde Inst., 889

F.2d at 1122 (“[Ijt is unquestionably true that effi-

cient government operation requires open discus-

sions among all government policy-makers and advi-

sors, whether those giving advice are officially part of

the agency or are solicited to give advice only for spe-

cific projects.” (emphasis added; internal quotation

omitted)).!1 The dissent is therefore wrong to sug-

11 In Formaldehyde Institute, the court rejected the FOLA

requester’s contention that Exemption 5 did not apply be-

cause “the outside reviews were not ‘solicited’ by HHS,”

explaining:

{I]t is an undisputed fact that “receipt of comments

{from outside reviewers] is an expected result in the

20a

gest, see Dissent at 10-11, that our cases allow an

agency merely to ask the general public for advice at

a press conference or in the Federal Register and

then to classify the resulting responses as “intra-

agency” documents; nothing in our cases (including

today’s decision) even remotely supports the view

that such circumstances would establish a consultant

relationship between the agency and each individual.

In addition, we do not see how the advice here would

be any more “intra-agency,” as the dissent suggests,

were the individuals consulted classified as “commit-

tee” members or paid nominal stipends. See Dissent

at 3, 10, 14-15. It was DoD’s formal solicitation of

their advice (with or without nominal pay or title)

that created a consultant relationship and made

them analogous to agency employees and documents

containing their advice “intra-agency.” We need not

decide how Exemption 5 might apply to any agency

solicitation for advice; this case involves the solicita-

submission of an article for publication.” Further-

more, it is undisputed that reviewers’ comments are

“expected to be confidential.” The agency does not

“solicit” reviews in the sense that it contracts to re-

ceive them, but it does actively seek to do business

with journals from which reviews are both expected

and then used by CDC to determine whether and in

what form to publish articles in the name of the

agency. This arrangement reflects a mutual under-

standing between the agency and journals that pro-

vide confidential reviews regarding how the agency

will use the reviews. The existence of such an ar-

rangement is more than enough to hold that the

Review Letter is a part of the deliberative process of

the agency.

889 F.2d at 1124 (record citations omitted) (alterations

added).

2la

tion of advice from a discrete group of experts, not

from “thousands of citizens.” See Dissent at 11.

The dissent alleges that our reliance, in this case,

on formal agency solicitation of advice from a dis-

crete group of experts (consistent with Circuit prece-

dent) presents a “fundamental problem” because

these “principles . . . have no basis in Exemption 5’s

text.” Dissent at 11. But the dissent itself offers no

anchoring in the text for a bright-line rule requiring

that an agency provide consultants with nominal

payment or membershi; on a nominal committee if it

wishes to consider documents containing their advice

“{ntra-agency.” Nor does it explain how the text of

Exemption 5 limits the volunteer consultants who

can produce intra-agency documents to those on

committees created under the Federal Advisory

Committee Act (FACA), 5 U.S.C. App. 2 §§ 1-16 (nor,

indeed, on the dissent’s reading of Klamath, how it

authorizes treatment of FACA-compliant consultants

as “intra-agency”). Indeed, while the dissent is trou-

bled by a belief that our analysis would permit advice

to be solicited by e-mail from “every law professor in

the country,” Dissent at 11, and come within Exemp-

tion 5 (a scenario we expressly do nt reach, see su-

pra p. 19), the dissent’s own analysis would seem to

require us to extend Exemption 5 to such a case so

long as the agency’s e-mail invited “every law profes-

sor” to join an “Ad Hoc Committee for Advice on Le-

gal Compliance” and indicated that a professor who

provided responsive comments would thereby con-

sent to membership on the Committee. There is

nothing in the text of Exemption 5 that would re-

quire such; what matters is the nature of the rela-

tionship between the consultant and the agency, not

the formalities observed.

22a

: For the foregoing reasons, we conclude that the

4 nineteen documents NIMJ seeks are exempt from

4 disclosure under FOIA Exemption 5. 5 U.S.C. §

3 552(b)(5). Accordingly, the judgment of the district

4 court is affirmed.

a So ordered.

Fg PO LE EN Pe ee PEP ee BES OEE Tye Te eT eee Ee Sa oF ey ee

23a

TATEL, Circuit Judge, dissenting: In November

2001, President Bush issued a military order author-

izing the Department of Defense to create military

commissions to try suspected terrorists. DoD then

sought advice about how to implement the order

from legal luminaries outside the agency, including

Bernard Meltzer, Lloyd Cutler, Ruth Wedgwood,

Newton Minow, Terrence O'Donnell, William Cole-

man, Geoffrey Hazard, William Webster, Martin

Hoffman, Jack Goldsmith, and Joseph Tompkins. In

response, these outside experts sent letters, faxes, or

emails to DoD. All were unpaid volunteers and none

were appointed by DoD to any type of committee,

task force, or other position, or made a part of DoD in

any other way. Nonetheless, the district court held—

and now this court agrees—that these documents are

“intra-agency memorandums or letters” protected

from public disclosure under Exemption 5 of the

Freedom of Information Act. Despite the textual im-

plausibility of this holding, I acknowledge that this

court’s precedent makes this a close case. As a policy

matter, moreover, I agree with my colleagues that

agencies will obtain more and better advice from out-

siders if able to promise confidentiality. But I must

respectfully dissent because I believe the court’s

holding does exactly what the Supreme Court for-

bade in Department of Interior v. Klamath Water Us-

ers Protective Assn, 532 U.S. 1 (2001): it makes “in-

tra-agency’.. . a purely conclusory term, just a label

to be placed on any document the Government would

find it valuable to keep confidential.” Jd. at 12.

The Freedom of Information Act (FOIA), 5 U.S.C.

§ 552, requires agencies to release all records upon

public request unless they fall within an exemption

enumerated in the Act. Klamath, 532 U.S. at 7.

24a

These exemptions “must be narrowly construed,” and

“do not obscure the basic policy that disclosure, not

secrecy, is the dominant objective of the Act.” Dep't of

Air Force v. Rose, 425 U.S. 352, 361 (1976).

DoD withheld the documents at issue here under

FOIA Exemption 5, which protects from disclosure

“inter-agency or intra-agency memorandums or let-

ters which would not be available by law to a party

other than an agency in litigation with the agency.” 5

U.S.C. § 552(b)(5). “To qualify, a document must

thus satisfy two conditions: its source must be a Gov-

ernment agency, and it must fall within the ambit of

a privilege against discovery under judicial] stan-

dards that would govern litigation against the

agency that holds it,” such as the attorney-client, de-

liberative process, or attorney work product privi-

leges. Klamath, 532 U.S. at 8. Because appellant

National Institute of Military Justice concedes that

these documents fall within the deliberative process

privilege, the only question before us is whether they

qualify as “intra-agency.”

In answering this question, the court turns im-

mediately to our precedent, but I begin with. the

statute’s text. The prefix “intra” means “within.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

1185 (1993); accord BLACK’S LAW DICTIONARY 841 (8th

ed. 1999). Thus, “the most natural meaning of the

phrase ‘intra-agency memorandum’ is a memoran-

dum that is addressed both to and from employees of

a single agency.” Klamath, 532 U.S. at 9 (quoting

DOJ vy. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J.,

dissenting)). That said, several courts of appeals, in-

cluding this one, “have held that [Exemption 5] ex-

tends to communications between Government agen-

cies and outside consultants hired by them.” Id. at

10 (emphasis added). For example, in Hoover v. De-

25a

partment of Interior, 611 F.2d 1132 (5th Cir. 1980),

the Fifth Circuit held that Exemption 5 protected a

memo prepared for the agency by a consultant it

hired to appraise a piece of property it wanted to

buy. Similarly, in Government Land Bank v. General

Services Administration, 671 F.2d 663 (ist Cir.

1982), the First Circuit held that Exemption 5 pro-

tected a property appraisal prepared for the agency

by an outside consultant.

Cases like these, which apply Exemption 5 to

protect documents written by paid outside consult-

ants, certainly stretch the meaning of “intra-agency,”

arguably disregarding the Supreme Court’s directive

that FOIA exemptions “must be narrowly construed.”

Rose, 425 U.S. at 361. But they still plausibly inter-

pret “intra-agency”: when an agency hires consult-

ants to perform a task, it’s not unreasonable to say

they have become part of the agency for purposes of

that project, making any documents they produce for

the project “intra-agency.” One could even imagine

situations in which a document written by a volun-

teer could plausibly be considered “intra-agency”’—

for example, if a person were appointed to a formal

advisory committee created by an agency pursuant to

the Federal Advisory Committee Act (FACA), 5

U.S.C. App. 2 §§ 1-16, and in that capacity wrote a

memorandum to an agency employee. Cf. Soucie v.

David, 448 F.2d 1067, 1077-78 & n.44 (D.C. Cir.

1971) (stating in dicta that a report prepared by out-

side experts formally appointed to a federal advisory

panel might be protected under Exemption 5).

In this case, however, the government asks us to

stretch Exemption 5 beyond its breaking point, to

cover everyone an agency asks for advice. The gov-

ernment’s argument flatly ignores the statute’s text,

as well as our obligation to construe FOIA exemp-

26a

tions narrowly. Nonetheless, the government insists

that our precedent requires the result it seeks, and

this court now agrees, relying principally upon three

cases from this circuit. Below I describe these cases

and then explain why I believe Klama’‘h undermines

all of them.

The first case, Ryan v. DOJ, 617 F.2d 781 (D.C.

Cir. 1980), involved questionnaires the Attorney

General sent to members of the Senate asking how

they chose whom to recommend for district court

judgeships. Jd. at 784. Responding to a FOIA re-

quest seeking the senators’ responses, the Attorney

General argued that the questionnaires were “intra-

agency” documents protected by Exemption 5. This

court agreed, explaining:

Congress apparently did not intend “inter-

agency” and “intra-agency” to be rigidly ex-

clusive terms, but rather to include any

agency document that is part of the delibera-

tive process. We cannot overlook the fact that

the documents here were generated by an

initiative from the Department of Justice,

i.e., the questionnaire sent out by the De-

partment to the Senators. The Senators re-

plied to the questionnaire. ... When an

agency record is submitted by outside con-

sultants as part of the deliberative process,

and it was solicited by the agency, we find it

entirely reasonable to deem the resulting

document to be an “intra-agency” memoran-

dum for purposes of... Exemption 5.

Id. at 790 (emphasis added) (footnotes omitted).

In the second case, Formaldehyde Institute v.

Department of Health & Human Services, 889 F.2d

1118 (D.C. Cir. 1989), an HHS scientist submitted an

27a

article for publication in a peer-reviewed journal. Af-

ter the journal gave the article to outside reviewers

who recommended against publishing it, the journal

sent a rejection letter, along with the comments of its

reviewers, to the scientist and HHS. We held the

comments protected under Exemption 5:

The Institute argues, and the District Court

concluded, that because the Journal is nei-

ther part of HHS nor one of HHS’[s] consult-

ants, the Review Letter is not entitled to Ex-

emption 5 protections. ...

... Ryan established, [however,] . . . that “in-

ter-agency” and “intra-agency” are not rigidly

exclusive terms, but raiher embrace any

agency document that is part of the delibera-

tive process. Thus, both the Institute and the

District Court err in focusing on the absence

of any formal relationship between the Jour-

nal’s reviewers and HHS.

Id. at 1123 (emphasis added) (citations and internal

quotation marks omitted).

In the third case, Public Citizen, Inc. v. DOJ, 111

F.3d 168 (D.C. Cir. 1997), Public Citizen sought dis-

closure of letters sent by former Presidents Reagan

and Bush to the National Archives and Records Ad-

ministration regarding access to their presidential

papers. We held the letters protected under Exemp-

tion 5:

While Public Citizen is doubtless right that a

former President is not an agency under

FOIA, records of communications between an

agency and outside consultants qualify as “in-

tra-agency ” for purposes of Exemption 5 if

they have been created for the purpose of aid-

28a

ing the ugency’s deliberative process. It is ir-

relevant whether the author of the docu-

ments is 4 regular agency employee or a

temporary consultant. Two circumstances

make application of this doctrine to the dis-

puted records peculiarly appropriate.

First, the former President in this context

can hardly be viewed as an ordinary private

citizen. He retains aspects of his former

role— most importantly, for current pur-

poses, the authority to assert the executive

privilege regarding Presidential communica-

tions... .

Second, the consultative relationship in-

volved here is not only explicit, but is man-

dated by statute. The Presidential Records

Act establishes an elaborate structure for the

management of Presidential records. The

United States retains ownership, possession

and control. But the President plays a sig-

nificant role even after he leaves office.

Id. at 170-71 (emphasis added) (citations and inter-

nal quotation marks omitted).

As an initial matter, Public Citizen and Ryan are

distinguishable from this case. In Public Citizen we

relied heavily on two facts not present here: former

Presidents are still part of the government in many

ways, and a statute expressly required the National

Archives and Records Administration to consult with

them. Both facts made it more plausible than it is

here to call the documents at issue “intra-agency.”

And in Ryan the “outsiders” offering comments were

U.S. senators, making it more reasonable to consider

their comments “inter-agency or intra-agency.”

29a

That said, were Public Citizen, Ryan, and For-

maldehyde the only cases on point, we would un-

doubtedly have to rule for DoD based on the broad

principles we announced in these cases. All three

cases say it makes no difference whether the docu-

ments at issue were generated by someone within

the agency. All that matters, they hold, is that the

documents played a role in the agency’s deliberative

process, a standard indisputably met here.

The problem with these cases, however, is that in

Klamath the Supreme Court rejected exactly this

type of reasoning. In Klamath, Indian tribes were

communicating with the Department of Interior

about their interests during upcoming federal and

state water allocation decisions. The government ar-

gued that its communications with the tribes enjoyed

Exemption 5 protection because confidential commu-

nications with the tribes were crucial to the agency’s

deliberative process. Flatly rejecting this argument,

the Supreme Court explained: “the first condition of

Exemption 5 is no less important than the second;

the communication must be ‘inter-agency or intra-

agency.” 532 U.S. at 9 (quoting 5 U.S.C. § 552(b)(5))

(emphasis added). The Court thus chided the gov-

ernment for making a fundamental error:

[T]he Department’s argument skips a neces-

sary step, for it ignores the first condition of

Exemption 5.... The Department seems to

be saying that “intra-agency” is a purely con-

clusory term, just a label to be placed on any

document the Government would find it valu-

able to keep confidential.

There is, however, no textual justification for

draining the first condition of independent vi-

tality . ...

30a

Id. at 12 (emphasis added).

The Court then went on to decide Klamath on a

narrow ground. While acknowledging that some

courts of appeals had “held that [Exemption 5] ex-

tends to communications between Government agen-

cies and outside consultants hired by them,” id. at 10

(emphasis added), the Court expressly declined to

decide whether consultants’ reports generally “may

qualify as intra-agency under Exemption 5,” id. at

12. Instead, it held that even if some communica-

tions from paid consultants could qualify for Exemp-

tion 5 protection, communications from the tribes in

Klamath could not because unlike the typical con-

sultant, who “does not represent an interest of its

own ... when it advises the agency that hires it,” id.

at 11, the tribes, in their communications with the

Department of Interior, were representing their own

interests, id. at 14.

Klamath thus presents us with a dilemma. While

leaving open the possibility that some communica-

tions from consultants may qualify for Exemption 5

protection, the decision also makes clear that “the

first condition of Exemption 5 is no less important

than the second; the communication must be ‘inter-

agency or intra-agency.” Id. at 9 (quoting 5 U.S.C. §

552(b)(5)) (emphasis added). Klamath also warns

that “[t]here is . . . no textual justification for drain-

ing the first condition of independent vitality.” Jd. at

12. Thus, our earlier cases protecting communica-

tions from outside consultants under Exemption 5

remain good law only to the extent they give “inde-

pendent vitality” to the meaning of “intra-agency.”

In my view, none of the cases the court relies on

passes this test. In Ryan, the court held, in language

this court never mentions: “Congress apparently did

not intend ‘inter-agency’ and ‘intra-agency’ to be rig-

3la

idly exclusive terms, but rather to include any agency

document that is part of the deliberative process.” 617

F.2d at 790 (emphasis added). Formaldehyde holds

exactly the same thing: “Inter-agency’ and ‘intra-

agency’ are not rigidly exclusive terms, but rather

embrace any agency document that is part of the de-

liberative process.” 889 F.2d at 1123 (citing Ryan,

617 F.2d at 790) (emphasis added); see also Dow

Jones & Co. v. DOJ, 917 F.2d 571, 575 (D.C. Cir.

1990) (“Ryan (and Formaldehyde), then, stand for

the proposition that Exemption 5 permits an agency

to protect the confidentiality of communications from

outside the agency so long as those communications

are part and parcel of the agency’s deliberative proc-

ess.”). And Public Citizen holds that “records of

communications between an agency and outside con-

sultants qualify as ‘intra-agency’ for purposes of Ex-

emption 5 if they have been ‘created for the purpose

of aiding the agency’s deliberative process.” 111 F.3d

at 170 (quoting Dow Jones, 917 F.2d at 575). All

three cases thus define “intra-agency” documents as

those that play a role in the agency’s deliberative

process, regardless of their source. Yet such reason-

ing is precisely what Klamath rejects: the “argument

skips a necessary step, for it ignores the first condi-

tion of Exemption 5” and makes “intra-agency’... a

purely conclusory term.” 532 U.S. at 12.

Despite this crucial language from Klamath, the

court holds that our earlier cases “compel us to con-

clude that documents such as the ones here—

submitted by non-agency parties in response to an

agency’s request for advice—are covered by Exemp-

tion 5.” Majority Op. at 9. The court derives this test

from Ryan’s statement that “[w]hen an agency record

is submitted by outside consultants as part of the

deliberative process, and it was solicited by the

32a

agency, we find it entirely reasonable to deem the re-

sulting document to be an ‘intra-agency’ memoran-

dum for purposes of . . . Exemption 5.” 617 F.2d at

790. According to the court, this test from Ryan sur-

vives Klamath because it somehow gives “independ-

ent vitality” to “intra-agency.” I would agree if the

court read this passage from Ryan—and limited its

hoiding here—to. mean that Exemption 5 protects

documents agencies solicit from people who could

plausibly be called “intra-agency,” such as paid con-

sultants or members of official agency committees

created under FACA. The problem, however, is that

the court holds that a document qualifies as “intra-

agency” if an agency solicits it from anyone.

Rather than giving “independent vitality” to “in-

tra-agency,” this test redefines that term. “Jntra”

means “within,” and “{iJn the absence of an in *ica-

tion to the contrary, words in a statute are assumed

to bear their ‘ordinary, contemporary, common

meaning.” Walters v. Metro. Educ. Enters., Inc., 519

U.S. 202, 207 (1997) (quoting Pioneer Inv. Servs. Co.

v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388

(1993)). In enacting FOIA, Congress gave no indica-

tion that it intended a previously unheard of defini-

tion of “intra,” so we are bound by the normal mean-

ing of the term. See United States v. Weber Aircraft

Corp., 465 U.S. 792, 802 (1984) (stating that “compel-

ling evidence of congressional intent . . . would be

necessary to persuade us to look beyond the plain

statutory language” of Exemption 5).

The court nonetheless holds that “documents .. .

submitted by non-agency parties in response to an

agency’s request for advice” are “intra-agency,” Ma-

jority Op. at 9, effectively declaring that people come

“within” an agency once the agency asks for their

opinions. In my view, this does not represent a

33a

“common sense interpretation of ‘intra-agency.” Jd.

at 15 (quoting Ryan, 617 F.2d at 790). Indeed, under

the court’s rule, if an agency held a press conference

and asked citizens to send in advice, letters from

everyone who responded would qualify as “intra-

agency.” Seeking to escape this untenable result, the

court adds a new requirement: the solicitation must

be “formal.” Jd. at 19. Requiring formality, however,

does nothing to prevent absurd results. For example,

an agency request for advice published in the Fed-

eral Register would be “formal,” but hardly enough to

make letters sent by members of the public who re-

sponded “intra-agency.” Perhaps by “formal” the

court means individualized, but if an agency sent

personalized letters to thousands of citizens asking

for advice, no one could plausibly call their responses

“intra-agency.” The court next suggests that a solici-

tation suffices if addressed to a “discrete group of ex-

perts.” Jd. But a DoD request for advice to every law

professor in the country would qualify as a request to

a “discrete group of experts,” yet the professors’ re-

sponses plainly would not be “intra-agency.” Appar-

ently unable to distinguish away this ridiculous con-

sequence of its rule, the court instead attacks my

reading of the statute as lacking any basis in Exemp-

tion 5’s text and leading to equa!ly absurd results.

Id. The court is incorrect on both counts.

My discussion of the plausible outer limits of Ex-

emption 5—as possibly including some paid consult-

ants and unpaid members of official agency commit-

tees—flows directly from the statute’s text: it rests

on the “ordinary, contemporary, common meaning” of

“intra-agency.” Pioneer, 507 U.S. at 388. That is, as

I explained above, one can plausibly say that some

paid consultants and members of official agency com-

mittees have come “within” the agency. By contrast,

34a

the principles the court develops in response to the

troubling examples in the previous paragraph have

no basis in Exemption 5’s text. An agericy’s mere re-

quest for advice, no matter how formal or selective.

has nothing to do with whether a person’s response

comes from within or outside the agency. Without

some indicia that the person responding is “within”

the agency, such as a paid consulting contract, “in-

tra-agency” has no meaning. Moreover, contrary to

the court’s claim, nothing | have said even suggests a

“bright-line rule” that any person who receives

“nominal payment” or is a member of a “nominal

committee” qualifies as “intra-agency.” Majority Op.

at 19. I have said only that at least some paid con-

sultants and members of formally created agency

committees could plausibly qualify as “intra-agency.”

If, as the court hypothesizes, an agency called law

professors “committee members” merely because it

asked for their advice once, id. at 20, they would not

qualify as “intra-agency.” This ruse would fail not

only because it would amount to a transparent at-

tempt to game Exemption 5, but also because there

would be no meaningful indicators that the profes-

sors had actually come within the agency, such as

might exist for members of official agency commit-

tees that meet and consult regularly with agency of-

ficials. Making matters even worse, such a “commit-

tee” would violate FACA in several ways, including

that it would have been created neither by statute

nor agency order published in the Federal Register. 5

U.S.C.App. 2 § 9(a). In the end, however, I need not

address every such hypothetical, for regardless of

where we ultimately establish the outer boundaries

of “intra-agency,” here it is crystal clear that the ex-

perts who submitted comments do not qualify.

35a

Of course, I understand the court’s desire to in-

terpret Exemption 5 to accomplish what it perceives

to be that exemption’s goal, but we may not use

statutory purpose to produce an unreasonable inter-

pretation. See Freeman v. B & B Assocs., 790 F.2d

145, 149 (D.C. Cir. 1986) (“[W]Je will not ignore the

words of the statute in pursuit of some disembodied

congressional purpose.”). “[T]hat Congress might

have acted with greater clarity or foresight” by pro-

tecting some communications from outside volun-

teers “does not give [this] court[ ] a carte blanche to

redraft [the] statute[ ] in an effort to achieve that

which Congress is perceived to have failed to do.”

United States v. Locke, 471 U.S. 84, 95 (1985).

In any event, looking to FOIA’s purpose gives no

clear answer to the question before us. Congress cer-

tainly intended Exemption 5 to ensure that agencies

not “operate in a fishbowl,” H.R. REP. NO. 89-1497, at

10 (1966), as reprinted in 1966 U.S.C.C.A.N. 2418,

2427, but it also “attempted to delimit the exception

as narrowly as consistent with efficient Government

operation,” S. REP. NO. 89-813, at 9 (1965), suggesting

that Congress never intended courts to expand the

exemption beyond its terms. What’s more, “disclo-

sure, not secrecy, is the dominant objective of

[FOIA}.” Rose, 425 U.S. at 361. Because FOIA thus

embodies conflicting purposes, we must presume

that Congress used language it believed properly

reconciled these goals. “[D]eference to the suprem-

acy of the Legislature, as well as recognition that

{members of Congress] typically vote on the language

of a bill, generally requires us to assume that ‘the

legislative purpose is expressed by the ordinary

meaning of the words used.” Locke, 471 U.S. at 95

(quoting Richards v. United States, 369 U.S. 1, 9

(1962)).

36a

Finally, and crucially, the court’s definition of

“{ntra-agency” disregards the Supreme Court’s com-

mand that FOIA exemptions “be narrowly con-

strued,” Rose, 425 U.S. at 361, and “read strictly in

order to serve FOIA’s mandate of broad disclosure,”

Klamath, 532 U.S. at 16. Whatever the policy merits

of the court’s interpretation of “intra-agency,” it is far

from narrow or strict.

Despite these problems with its approach, the

court maintains that our precedent demands its re-

sult. It offers a number of reasons for this conclu-

sion, each of which I think flawed.

To begin with, the court finds “no basis to jetti-

son our binding circuit precedent,” Majority Op. at

11, because Klamath never determined whether con-

sultants’ reports “may qualify as intra-agency under

Exemption 5,” 532 U.S. at 1Z. But Klamath did de-

cide that courts may not “ignore the first condition of

Exemption 5” and make “intra-agency’. . . a purely

conclusory term,” id.—precisely what this court did

in Ryan, Formaldehyde, and Public Citizen. Thus,

the test set forth in United States v. Williams, 194

F.3d 100 (D.C. Cir. 1999), upon which the court re-

lies, Majority Op. at 12 n.7, is met here because

Klamath “eviscerates” the reasoning in the Ryan line

of cases. Williams, 194 F.3d at 105. Indeed, Klamath

so clearly undermines Formaldehyde that even un-

der the expansive definition of “intra-agency” the

court adopts today, Formaldehyde would have come

out the opposite way, for there the agency did not so-

licit the documents it sought to protect—rather, an

outside journal solicited the comments and later gave

them to the agency. This highlights just how much

Klamath has already “jettison[ed] our binding circuit

precedent.” See In re Sealed Case, 352 F.3d 409, 412

(D.C. Cir. 2003) (“[A] three-judge panel may always

37a

... determine .. . that a prior holding has been su-

perseded, and hence is no longer valid as precedent.”

(citations and internal quotation marks omitted)).

Next, the court insists it is irrelevant that the

individuals who offered advice to DoD were “private

citizens rather than government employees or paid

contract consultants,” saying “we see no reason why

the absence of a contract or compensation should dif-

ferentiate them from the ‘typical’ outside agency con-

sultants.” Majority Op. at 13. But the lack of a con-

tract or compensation matters. For one thing, con-

tracting with and paying a consultant establishes a

formal relationship between that person and the

agency, making it at least plausible to consider the

person “intra-agency.” In contrast, the court allows

agencies to describe anyone they ask for advice as

“consultants,” never explaining how private citizens

can reasonably be described as “intra-agency” merely

because an agency asks for their views. Moreover,

although the court seeks support for its holding in

Klamath’s statement that outside consultants “may

be enough like the agency’s own personnel to justify

calling their communications ‘intra-agency,” Major-

ity Op. at 16 (quoting Klamath, 532 U.S. at 12), it ig-

nores that Klamath was referring to “communica-

tions between Government agencies and outside con-

sultants hired by them.” 532 U.S. at 10 (emphasis

added); see also id. (“[T]he consultants in these cases

were independent contractors ... .”).

Lastly, the court believes that our post-Klamath

decision in Judicial Watch, Inc. v. Department of En-

ergy, 412 F.3d 125 (D.C. Cir. 2005), reaffirms Ryan,

Formaldehyde, and Public Citizen. But this reading

overstates our holding in Judicial Watch. There we

held that although the National Energy Policy De-

velopment Group (NEPDG)—a body composed en-

38a

tirely of federal employees from many agencies who

advised the president on energy policy—was not an

agency within the meaning of FOIA, Exemption 5

still protected documents created or received by the

group as part of its deliberative process. Our ration-

ale, however, was not that it was irrelevant whether

the documents were “intra-agency.” Instead, we held

that because the federal employees who made up the

NEPDG were advising the President, they were, in

effect, part of the President’s staff, and their docu-

ments were therefore protected under earlier deci-

sions holding that documents prepared by presiden-

tial staff enjoy Exemption 5 protection. See id. at

129 (“Neither Exemption 5 nor the cases interpreting

it distinguish between the decision-making activities

of an ‘agency’ subject to the FOIA and those of the

President and his staff ...”).

To be sure, after reaching this conclusion we

went on to note, in language the court cites, that our

holding was “not inconsistent with [Exemption 5’s]

textual limitation to ‘intra-agency’ or ‘inter-agency’

communications,” because in Ryan and other « es

we had established “that a document need nm be

created by an agency or remain in the possession of

the agency in order to qualify as ‘intra-agency.” Id.

at°130. As an example of this principle, we pointed

to Ryan’s statement quoted above: “When an agency

record is submitted by outside consultants as part of

the deliberative process, and it was solicited by the

agency, we find it entirely reasonable to deem the re-

sulting document to be an ‘intra-agency’ memoran-

dum for purposes of ... Exemption 5.” Jd. (quoting

Ryan, 617 F.2d at 790). In citing this passage from

Ryan, however, we could not possibly have been

holding that documents solicited from outside volun-

teers qualify as “intra-agency,” for no such docu-

39a

ments were at issue in Judicial Watch. All we actu-

ally held is something undisputed here: that at least

some documents created by people other than agency

employees may qualify as “intra-agency.” Moreover,

as explained above, reading this statement to apply

to documents solicited from anyone fails to account

for Klamath; it redefines “intra-agency” rather than

giving the term “independent vitality.”

Whether agencies should be able to withhold

communications they solicit from outside volunteers

is a difficult policy question about which reasonable

people disagree. The National Institute of Military

Justice argues that allowing agencies to withhold

such communications will allow “secret participation

by members of the public in critical agency rule-

making processes.” Appellant's Opening Br. 21. The

government and this court respond that allowing

agencies to promise confidentiality will encourage

candid advice from outside advisors and thus im-

prove agency decisionmaking.

As a policy matter, I agree with my colleagues.

Agencies will obtain better advice if they can promise

confidentiality to outside volunteers whose views

they solicit, and I think the benefits of such advice

will outweigh the cost in lost transparency. But my

view on this issue is not the one that matters. The

proper way to resolve this policy issue is not for this

court to stretch Exemption 5’s words to cover what-

ever it thinks they should, but rather for Congress to

hold hearings, determine whether it wishes to pro-

tect communications from outside volunteers, and

modify Exemption 5’s language accordingly.

We find ourselves in a situation similar to that

we faced in Dow Jones & Co. v. DOJ, 917 F.2d 571

40a

(D.C. Cir. 1990). There we said: “It may well be true

that if Congress had thought about this question, the

Exemption would have been drafted more broadly to

include [communications like this one]. But Con-

gress did not, and the words simply will not stretch

to cover this situation ... .” Id. at 574. Because Ex-

emption 5’s words “simply will not stretch to cover

this situation,” id., and because the result the court

reaches contravenes Klamath, I would reverse the

district court and direct DoD to make these docu-

ments public.

;

4la

APPENDIX B

NATIONAL INSTITUTE OF

MILITARY JUSTICE, PLAINTIFF,

U.S. DEPARTMENT OF DEFENSE,

DEFENDANT.

Civil Action No. 04-312 (RBW)

MEMORANDUM OPINION

The plaintiff has filed this lawsuit alleging that

the defendant impermissibly withheld documents re-

quested pursuant to the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 (2000). Complaint

(“Compl.”) 4 1. Currently before the Court are the

parties’ cross-motions for summary judgment.! For

the reasons set forth below, this Court grants in part,

and denies in part, both parties’ motions.

Il. Background

The facts in this case are not largely in dispute

and are the following. On November 13, 2001, the

President of the United States issued a Military Or-

! The following papers have been submitted in connection

with these motions: (1) Memorandum of Points and Au-

thorities in Support of Defendant’s Motion for Summary

Judgment (“Def.’s Mem.”); (2) Plaintiffs Memorandum in

Opposition to Defendant’s Second Motion for Summary

Judgment and in Support of Plaintiffs Second Cross-

Motion for Summary Judgment (“Pl.’s Mem.”); (3) Reply

to Plaintiffs Opposition to Defendant’s Motion for Sum-

mary Judgment and Opposition to Plaintiff's Cross Mo-

tion for Summary Judgment (“Def.’s Opp’n’); and (4)

Plaintiffs Reply to Defendant’s Opposition to Plaintiffs

Second Cross Motion for Summary Judgment (“Pl.’s Re-

ply”).

42a

der authorizing the establishment of military com-

missions to try suspected terrorists. Pl.’s Mem. at 3

(citing 66 Fed. Reg. 57,833 (Nov. 16, 2001)). Section

4 of this Order directed the Secretary of the Depart-

ment of Defense (“Secretary”) to issue regulations to

implement the President’s Military Order. Jd. Pur-

suant to this provision, the Secretary began the

process of promulgating regulations to establish the

military commissions. And, on July 1, 2003, the Sec-

retary published in the federal register the final

rules establishing the procedures for conducting the

military commissions. /d. (citing 68 Fed. Reg. 39,374

(July 1, 2003)). According to the plaintiff, the De-

partment of Defense (“DoD”), during the internal

drafting process of the regulations, received com-

ments and advice from non-agency attorneys and the

general public on the draft regulations. Jd. at 3-4.

These comments form the basis of the plaintiff's

FOIA request that is at issue in this case.

The plaintiff, the National Institute for Military

Justice (““NIMJ”), is a nonprofit corporation that pro-

vides information to the public about military justice.

Compl. 4 3. On October 3, 2003, the plaintiff submit-

ted a request pursuant to the FOIA for

all written or electronic communications that

the Department (including the Secretary and

General Counsel) has either sent to or re-

ceived from anyone (other than an officer or

an employee of the United States acting in

the course of his or her official duties) regard-

ing the President’s November 13, 2001 Mili-

tary Order, the Secretary’s Military Commis-

sion Orders, and the Military Commission

Instructions. Titis requests includes but is

not limited to suggestions or comments on

43a

potential, proposed, or actual terms of any of

those Orders or Instructions and any similar,

subsequent, superseding or related Orders or

Instructions, whether proposed or adopted.

Comp]. 4 5. Upon receipt of the plaintiffs FOIA re-

quest, the defendant directed it to two offices of the

Secretary likely to have documents responsive to the

request—(1) the Correspondence and Directives Di-

vision of a support organization, the Washington

Headquarters Services, and (2) the Office of the Gen-

eral Counsel. Def.’s Mem. at 2. The search in the

Office of the General Counsel was focused primarily

in the Office of Military Commissions and the Office

of the Deputy General Counsel. Jd. On November

18, 2003, the defendant made an “interim” response

to the plaintiffs request that resulted in the release

of some, but not all, of the requested documents.”

Compl. { 6. The plaintiff administratively appealed

the defendant’s response, id. 4 7, and on February

26, 2004, after the defendant failed to timely respond

to the appeal, id. | 8, the plaintiff commenced the ac-

tion that is presently before this Court. After an ini-

tial round of summary-judgment briefing in this case

commenced, the defendant undertook a new search

for responsive documents. Def.’s Mem. at 3. This

new search was conducted in more offices than the

previous search and used different search criteria,

which resulted in a much broader search for respon-

sive documents. Jd. Specifically, this expanded

search included searches of: (1) the files of the Legal

Counsel; (2) the correspondence files of the General

2 Additional documents from this initial search were re-

leased on June 4, 2004, following the commencement of

this action. Def.’s Mem. at 3.

44a

Counsel]; (3) the files of the Deputy Secretary of De-

fense; (4) the files of the Under Secretary of Defense

for Policy; (5) the files of the Office of Detainee Af-

fairs; and (6) the files of the Office of Public Inquiries

and Analysis. Id. at 3. Moreover, former employees

were contacted who might have knowledge of the lo-

cation of potentially responsive documents. Id. This

search resulted in the discovery of thousands of

pages of responsive documents, which, to the extent

the defendant claims is permissible under the FOIA,

have been released. Id. at 4.

On March 9, 2005, the defendant filed a second

motion for summary judgment along with an index

produced pursuant to Vaughn v. Rosen, 484 F.2d

820, 827 (D.C. Cir. 1973), which provides the defen-

dant’s justifications for withholding all or part of 87

documents. Def.’s Mem., Ex. 11 (Vaughn index). In

the papers currently before the Court, the defendant

contends that it has properly withheld all or part of

these documents pursuant to FOIA exemptions

(b)(3), (b)(5), and (b)(6), and that its search was ade-

quate to discover all responsive documents. Jd. at 4-

6. Accordingly, the defendant argues that it is enti-

tled to summary judgment. The plaintiff, however,

contends that the defendant’s search was not ade-

quate, and that many of the documents that were

discovered have been improperly withheld under ex-

ceptions (b)(3) and (b)(5). Pl.’s Mem. at 1-2.

lll. Standard of Review

A. Federal Rule of Civil Procedure 56(c)

This Court will grant a motion for summary

judgment under Rule 56(c) if “the pleadings, deposi-

tions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that

45a

there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). When ruling on

a motion for summary judgment, this Court must

view the evidence in the light most favorable to the

non-moving party. VoteHemp, Inc. v. Drug Enforce-

ment Admin., 237 F. Supp. 2d 55, 59 (D.D.C. 2002)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986)). However, the non-moving party cannot rely

on “mere allegations or denials ... but ... must set

forth specific facts showing that there is a genuine

issue for trial.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986) (citation omitted); see also

Fisher v. Natl Institutes of Health, 934 F. Supp. 464,

467-68 (D.D.C. 1996) (quoting Anderson, 477 U.S. at

248).

B. Summary Judgment in FOIA Cases

The ‘burden is on the agency’ to show that the

requested material falls within a FOIA exemption.”

Petroleum Info. Corp. v. Dep't of the Interior, 976

F.2d 1429, 1433 (D.C. Cir. 1992) (quoting 5 U.S.C. §

552(a)(4)(B)). Agencies typically submit affidavits

and a Vaughn index to satisfy this burden, which

sets forth a description of each withheld document,

the exemption claimed for withholding the document,

and reasons supporting the application of the exemp-

tion to the withheld material. Vaughn, 484 F.2d at

827; King v. Dep’t of Justice, 830 F.2d 210, 219 (D.C.

Cir. 1987); Weisberg v. Dep't of Justice, 705 F.2d

1344, 1351 (D.C. Cir. 1983). This index must be suf-

ficiently detailed to allow a court to determine

whether the claimed exemptions apply to the with-

held documents. Oglesby v. U.S. Dep't of Army, 79

F.3d 1172, 1176 (@.C. Cir. 1996). Moreover, a court

46a

may rely on affidavits provided by an agency in

granting summary judgment “if the affidavits de-

scribe the documents and the justifications for non-

disclosure with reasonably specific detail, demon-

strate that the information withheld logically falls

within the claimed exemption, and are not contro-

verted by either contrary evidence in the record nor

by evidence of agency bad faith.” Military Audit Pro-

ject v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

These statements by the agency “cannot support

summary judgment if they are ‘conclusory, merely

reciting statutory standards, or if they are too vague

or sweeping.” King, 830 F.2d at 219 (citations omit-

ted). While the District of Columbia Circuit has not

defined what constitutes a conclusory statement, it

has concluded that “where no factual support is pro-

vided for an essential element of the claimed privi-

lege or shield, the label ‘conclusory’ is surely apt.”

Senate of the Commonwealth of Puerto Rico v. Dep't

of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (em-

phasis in original). In addition, “[w]hile an agency’s

affidavits are presumed to be in good faith, a plaintiff

can rebut this presumption with evidence of bad

faith.” Gutman v. Dep't of Justice, 238 F. Supp. 2d

284, 290 (D.D.C. 2003). Thus, to determine whether

a court should grant summary judgment in a FOIA

action, the court must determine whether undis-

puted material facts, as shown by exhibits, affidavits,

and/or the Vaughn index, show that each requested

document has been produced, is unidentifiable, or is

exempt from disclosure. Students Against Genocide

v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001);

Weisberg v. Dep't of Justice, 627 F.2d 365, 368 (D.C.

Cir. 1980).

4i7Va

As already noted, the defendant contends that it

has properly withheld responsive documents pursu-

ant to FOIA exemptions (b)(3), (b)(5), and (b)(6), and

that its search was adequate. Defs Mem. at 4. On

the other hand, the plaintiff takes exception to each

of the defendant’s positions.’ Pl.’s Mem. at 1-2. The

Court will address the plaintiff's challenges in turn.

IV. Legal Analysis

A. The Defendant’s Search

The plaintiff first argues that its “FOIA request

has been infected by either bad faith or incompe-

tence” and thus, the defendant has a heavier burden

to carry in establishing thrt it has complied with the

requirements of the FOIA. Pl.’s Mem. at 11. The

plaintiff advances two examples to illustrate this

point. First, the plaintiff opines that the defendant

failed to initially include comments from non-agency

lawyers as responsive to its FOIA request. Jd. The

plaintiff suggests that this was inexcusable, and

cannot simply be attributed to inadvertence or over-

sight, since those documents were clearly responsive

to its request. Jd. As support for its position, the

plaintiff directs the Court to the acknowledgment

and praise made by the Secretary at a press confer-

ence concerning the advice and comments provided

by these attorneys. Jd. at 12. According to the plain-

tiff, the defendant’s failure to produce these docu-

ments demonstrates an “indifference to the com-

mands of FOIA,” and shows that the delay in the re-

3 The plaintiff does not, however, challenge the defen-

dant’s withholding of documents pursuant to exemption

(b)(6), Pl.’s Mem. at 2 & n.7. Accordingly, the Court need

not address whether it was proper to withhold those

documents under this exemption.

48a

lease of these documents is indefensible. Jd. at 13-

14. Second, the plaintiff posits that there are incon-

sistences between the defendant’s decision to release

certain documents while failing to release others. Id.

at 14-15. Specifically, the plaintiff directs the Court

to instances where the defendant released docu-

ments containing comments from the general public,

but withheld documents containing the views of non-

agency attorneys. Jd. Moreover, the plaintiff notes

that the defendant released three documents con-

taining the views of non-agency attorneys, but with-

held documents containing the views of other such

attorneys. Jd. These inconsistencies, the plaintiff

opines, demonstrate that the defendant’s response to

the plaintiffs FOIA request was made in bad faith.

Id. at 14-16. The defendant contends, however, that

based on the affidavits presented to the Court and

the evidence in the record, there has been no show-

ing of bad faith, inconsistency, or incompetence on its

part. Def.’s Opp’n at 2-3. This Court agrees with the

defendant’s positions for the reasons set forth below.

The plaintiffs first challenge to the defendant’s

failure to account for allegedly responsive documents

in its initial FOIA search is essentially an attack on

the adequacy of the defendant’s search based on a

claim that it was conducted in bad faith. The FOIA

requires an agency defendant to show “beyond mate-

rial doubt” that it has conducted a search reasonably

calculated to uncover all relevant documents. Weis-

berg, 705 F.2d at 1351. As the District of Columbia

* The plaintiff also challenges the overall adequacy of the

search. This position is addressed more fully in a subse-

quent section of this opinion. See infra Section LII.E at

35-37.

49a

Circuit has made clear, “[t}]he issue is not whether

any further documents might conceivably exist but

rather whether the government’s search for respon-

sive documents was adequate.” Jd. (quoting Perry v.

Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (per cu-

riam) (emphasis in original)). “The adequacy of an

agency’s search is measured by a ‘standard of rea-

sonableness’ and is ‘dependent upon the circum-

stances of the case.” Id. (quoting McGehee v. CIA,

697 F.2d 1095, 1100-01 (D.C. Cir. 1983); Founding

Church of Scientology v. NSA, 610 F.2d 824, 834

(D.C. Cir. 1979)). To establish that an agency has

conducted an adequate search, the government may

rely on affidavits, as long as they are “reasonably de-

tailed . . . setting forth the search terms and the type

of search performed, and averring that all files likely

to contain responsive materials (if such records exist)

were searched.” Valencia-Lucena v. United States

Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)

(quoting Oglesby v. Dept of the Army, 920 F.2d 57, 68

(D.C. Cir. 1980)); see also Weisberg, 705 F.2d at 1351

(“The government may rely upon affidavits to show it

has conducted a reasonable search, as long as they

are ‘relatively detailed and‘ nonconclusory and ...

submitted in good faith.”) (quoting Goland v. CIA,

607 F.2d 339, 367, 369 (D.C. Cir. 1979)). Moreover,

it is well-settled in this Circuit that subsequent dis-

closure of documents initially withheld does not

alone establish bad faith. E.g., Public Citizen v.

Dep't of State, 276 F.3d 634, 645 (D.C. Cir. 2002);

Gutman, 238 F. Supp. 2d at 291.

Here, rightly or wrongly, the defendant narrowly

construed the plaintiffs initial FOIA request. How-

ever, after the parties engaged in discussions and

this suit was commenced, the defendant expanded its

;

50a

search for responsive documents, searched in loca-

tions not previously searched and utilized different

search terms which expanded the scope of the

search. While it now seems obvious that the defen-

dant’s initial search was inadequate, and it is clear

that the defendant could have been more diligent in

its initial response to the plaintiffs FOIA request,

this does not demonstrate bad faith. As the Eighth

Circuit has noted, “[w]hile the discovery of additional

documents is evidence that the search was not thor-

ough, such discovery is not conclusive of agency bad

faith. It may be indicative of administrative ineffi-

ciency, or it may, as in this case, indicate reluctant

diligence by the agency under the goad of persistent

litigation by a determined plaintiff.” Miller v. Dep't

of State, 779 F.2d 1378, 1386 (8th Cir. 1986) (inter-

nal citations omitted). Such is the case here. Al-

though the agency was not initially diligent, that

alone does not demonstrate bad faith, especially in

light of the subsequent efforts to search for respon-

sive records once the parties engaged in discussions

about the specific type of documents the plaintiff was

seeking.®

5 The plaintiff places great weight on Am. Civil Liberties

Union v. Dep’t of Defense, 339 F. Supp. 2d 501 (S.D.N.Y.

2004) to demonstrate that the defendant has a complete

indifference to the mandates of the FOIA. Pl.’s Mem. at

13-14. However, this case is completely inapposite.

There, the Court noted that “with small exception, no

documents fhad] been produced by defendant; no docu-

ments [had] been identified; no exemptions fhad] been

claimed; and no objections [had] been stated.” Id. at 502-

03. As demonstrated by the facts in this case, thousands

of documents have been identified and produced, exemp-

tions have been claimed, and a Vaughn index has been

5la

The plaintiffs second argument—that bad faith

is evidenced because there are inconsistencies be-

tween released documents and documents that have

been withheld—is also meritless. Pl.’s Mem. at 14.

The plaintiff avers that some released documents are

virtually identical in substance to other documents

that have been withheld. For example, the plaintiff

points to instances where documents containing the

views of the general public or non-agency attorneys

were released, but other documents containing the

views of other non-agency attorneys were not re-

leased. Jd. at 14-15. While conceding that the re-

lease of documents containing comments from some

non-agency attorneys and the general public does not

waive the agency’s ability to withhold similar docu-

ments, the plaintiff opines that the agency must

clearly detail why documents containing the com-

ments of one set of attorneys can be released, but

documents containing the comments from another

set cannot. To support its position, the plaintiff re-

les on Army Times Publishing Co. v. Dep't of the Air

Force, 998 F.2d 1067 (D.C. Cir. 1993). Jd. at 16-17.

This case simply does not support the plaintiffs con-

tention.

In Army Times, the plaintiff sought to obtain cer-

tain information pursuant to the FOIA that had been

acquired by the Air Force through telephone surveys

conducted by non-agency pollsters hired by the

agency to assess military personnel views on working

conditions. Jd. at 1068-69. The defendant had pre-

viously released some of the survey results through

news releases. Jd. at 1069. The defendant, in deny-

provided. Thus, the plaintiffs reliance on Am. Civil Lib-

erties Union is clearly misplaced.

52a

ing the plaintiffs FOIA request, claimed that FOIA’s

Exemption 5 prohibited the release of the withheld

information. Jd. The district court granted sum-

mary judgment to the Air Force. However, on ap-

peal, the District of Columbia Circuit reversed, con-

cluding that because some information from the sur-

veys had been voluntarily produced, the agency could

not claim a blanket exemption under the FOIA. /d.

at 1071. Thus, to withstand scrutiny, an agency

must provide detailed affidavits and/or a Vaughn in-

dex indicating why the documents withheld warrant

application of Exemption 5, including determinations

on segregability. Jd.

Here, to the extent the plaintiff claims that bad

faith is shown by the defendant’s failure to comply

with the requirement of Army Times, this argument

misses the mark. First, Army Times did not even

discuss bad faith, and it is therefore unclear why the

plaintiff has relied on it for its bad faith proposition.

Rather, Army Times addressed the applicability of

Exemption 5, and stands for the proposition that a

blanket exemption can not be claimed when part of

the requested information has already been released.

And, the defendant has complied with the require-

ments of Army Times. It has provided affidavits and

a Vaughn index detailing why particular documents

were withheld, and has made segregability determi-

nations. See Def.’s Opp’n, Ex. 2; Ex. 3; Ex. 4. It was

the lack of such information that was fatal to the

agency's non-production in Army Times. Moreover,

6 Although this Court will address Exemption 5 in more

detail in a separate portion of this opinion, see infra Sec-

tion III.C at 23-32, because the plaintiff relies on Army

Times as support for its bad faith argument, it is appro-

priate to note that the defendant, by using detailed affi-

54a

with Army Times, but failed to do so, such a finding

would not demonstrate bad faith or incompetence.

The Court therefore rejects the plair..ffs conten-

tion that the defendant’s response to the plaintiffs

FOIA request has been infected with bad faith.

B. Exemption 3 of the FOIA

Exemption 3 of the FOIA exempts from disclo-

sure any document that has been “specifically ex-

empted from disclosure by statute ..., provided that

such statute (A) requires that the matters be with-

held from the public in such a manner as to leave no

discretion on the issue, or (B) establishes particular

criteria for withholding or refers to particular types

of matters to be withheld.” 5 U.S.C. § 552(b)(3). As

the District of Columbia Circuit has noted, “a statute

that is claimed to qualify as an Exemption 3 with-

holding statute must, on its face, exempt matters

from disclosure. We must find a congressional pur-

pose to exempt matters from disclosure in the actual

words of the statute . . . [not] in an agency’s interpre-

tation of the statute.” Reporters Comm. for Freedom

of the Press v. Dept of Justice, 816 F.2d 730, 735

(D.C. Cir. 1987), rev'd on other grounds, 489 U.S. 749

(1989). Thus, “[t]he aim of Exemption 3 is to incor-

porate only those statutes where it is clear that the

basic policy decision in favor of nondisclosure has

been made by the Legislative rather than by the Ex-

ecutive Branch.” Long v. IRS, 742 F.2d 1173, 1179

n.14 (9th Cir. 1984) (citing Am. Jewish Congress v.

Kreps, 574 F.2d 624, 628 (D.C. Cir. 1978)).

Here, the defendant relies on 10 U.S.C. § 130c

(2000) as the basis for withholding documents pur-

suant to Exemption 3. Def.’s Mem. at 10-13. Section

130c provides that certain national security officials,

55a

in this case the Secretary of Defense, can withhold

from public disclosure sensitive information of for-

eign governments. 10 U.S.C. §§ 130c(a), (h). The

documents at issue here are correspondence between

DoD officials and representatives of the British and

Canadian governments. Def.’s Mem. at 10-13. Be-

cause the plaintiff concedes that this statute satisfies

the requirements of Exemption 3, Pl.’s Mem. at 31-

32, the only question remaining is whether the re-

quirements for withholding the documents under §

130c have been satisfied.

Information eligible for exemption from disclo-

sure under 10 U.S.C. § 130c is defined by the statute

as follows:

(b) Information eligible for exemption.—For

the purposes of this section, information is

sensitive information of a foreign government

only if the national security official concerned

makes each of the following determinations

with respect to the information:

(1) That the information was provided

by, otherwise made available by, or

produced in cooperation with, a foreign

government or international organiza-

tion.

(2) That the foreign government or in-

ternational organization is withholding

the information from public disclosure

(relying for that determination on the

written representation of the foreign

government or international organiza-

tion to that effect).

(3) That any of the following conditions

are met:

Pe ee ee ee ee ee ee

56a

(A) The foreign government or inter-

national organization requests, in

writing, that the information be with-

held.

(B) The information was provided or

made available to the United States

Government on the condition that it

not be released to the public.

formation, or is in a category of infor-

mation, that the national security offi-

cial concerned has specified in regula-

tions prescribed under subsection (f)

as being information the release of

which would have an adverse effect on

the ability of the United States Gov-

ernment to obtain the same or similar

information in the future.

10 U.S.C. § 130c(b). The statute also contains provi-

sions controlling the length of time documents may

be withheld from public disclosure. 10 U.S.C. §

130c(d). }

The plaintiff argues that the defendant has failed

to comply with the requirements of § 130(b), and

thus it cannot rely upon this statutory provision to

withhold responsive documents. The plaintiff ad-

vances five arguments in support of its position.

First, the plaintiff contends that Christine Ricci, the

declarent espousing the applicability of § 130c(b),

does not have the authority to do so because she is

not a “national security official.” Pl.’s Mem. at 34.

Second, the plaintiff opines that the defendant can-

not satisfy 10 U.S.C. § 130c(b)(1) as to any docu-

ments that were sent from DoD officials to officials of

OO SE es

~—_——~ Teo ee ee ee ee ee eee ee we ea Be Py ee ee ae eee er aN Eee eee ae

57a

either the British or Canadian governments because

the documents are not “from” these foreign govern-

ments. Pl.’s Mem. at 33-34. Third, the plaintiff con-

tends that the defendant has failed to satisfy §

130c(b)(2) because it asserts there is no written rep-

resentation from a foreign government stating that

the foreign government is withholding the informa-

tion from the public. Jd. at 34. Fourth, the plaintiff

broadly avers that the defendant has not satisfied

any of the requirements under 10 U.S.C. § 130c(b)(3).

Pl.’s Mem. at 33-36. And finally, the plaintiff opines

that the defendant has failed to properly specify a

time when the documents should be released. Id. at

36. The defendant takes exception with all of these

positions. Def.’s Opp’n at 11-14. The Court will ad-

dress each of the parties’ arguments in turn, and for

the reasons set forth below concludes that the defen-

dant has failed to completely satisfy the require-

ments of § 130c.

Initially, this Court must determine whether Ms.

Ricci has the authority to determine whether docu-

ments can be withheld under § 130c. Pl.’s Mem. at

34. 10 U.S.C. § 130c(a) states that “[t]he national se-

curity official concerned ... may withhold from public

disclosure ... sensitive information of foreign gov-

ernments in accordance” with the several provisions

of the statute. And § 130c(h)(1) defines “[t]he term

national security official concerned” as the “Secretary

of Defense,” the “Secretary of Homeland Security,”

and the “Secretary of Energy.” Ricci is therefore not

a “national security official” under § 130c(h)(1) as she

serves as a DoD Associate Deputy General Counsel

(Legal Counsel) in the Office of the General Counsel.

Ricci Decl. § 1. Apparently recognizing that Ricci

does not qualify as a national security official, the de-

ee A ee a ae Pe Ee eo

ee Pee

. > 4s 4 3 etd - a!

ee ee See SS ee ee ee ee

58a

fendant argues that she has the authority to with-

hold documents under § 130c pursuant to her author-

ity as an Initial Denial Authority when responding to

FOIA requests. Def.’s Opp’n at 11.

Thus, according to the defendant, since § 130c

can form the basis for withholding documents under

Exemption 3, and. Ms. Ricci has the authority to

withhold documents under the FOIA, she “in es-

sence” has the authority to withhold documents un-

der § 130c. Id. (citing Pl.’s Opp’n, Ex. 4 4 6). This

reasoning simply misses the mark.

10 U.S.C. § 130c(h) clearly provides, at least in

the context of this case, that only the Secretary of

Defense may designate documents to be withheld

under § 130c. The statute provides for no other per-

son in the DoD to make such a determination, nor

does it incorporate any language to suggest that an

individual with authority to withhold documents un-

der the FOIA can also withhold documents under §

130. This Court cannot read into 2 statute language

that is clearly not there. Qi-Zhwo v. Meissner, 70

F.3d 136, 140 (D.C. Cir. 1995) (“Where, as here, the

plain language of the statute is clear, the court gen-

erally will not inquire further into its meaning.”).

Moreover, while this Court can look beyond the plain

language of a statute if applying the plain language

would lead to an absurd result, Perry v. Commerce

Loan Co., 383 U.S. 392, 400 (1966), the defendant

makes no such argument here, nor could it for the

following reasons. It is clearly not unreasonable for

the Secretary to be exclusively charged on behalf of

the DoD with making a determination of whether

documents containing sensitive information from

foreign governments should be withheld from public

disclosure. Moreover, even if 10 U.S.C. § 130c(g),

a ee, Ss ee eo ee

59a

which provides that the Secretary “shall . . . pre-

scribe regulations to carry out this section,” author-

izes the Secretary to delegate his authority for desig-

nating documents for non-production under § 130c (a

question the Court need not answer in this case), the

defendant has not directed this Court to any regula-

tion where such a designation has been made, nor

could this Court find any. Rather, the defendant

asks this Court to infer that § 130c authority has

been delegated by the Secretary to Ms. Ricci because

she “is an ‘official who has been granted authority by

the head of a DoD component to withhold records re-

quested under the FOIA ... ” Def.’s Opp’n at 11.’

This Court simply cannot make that leap to permit

the Secretary to avoid the authority vested in him by

statute, or to at least promulgate regulations for the

delegation of that authority, which would trigger the

notice and comment requirements that would likely

accompany any rulemaking under § 130c(g). See,

e.g., 5 U.S.C. § 553 (discussing the notice and com-

7 Even if the Court could accept the defendant’s position,

which it cannot, the defendant’s argument would still fail.

Section 130c makes clear that the power for withholding

documents iies with the Secretary of Defense, thus only

the Secretary of Defense can delegate those powers, as-

suming that delegation is permitted. Ricci’s powers under

the FOIA, however, have been given to her by the head of

a Department of Defense Component. Def.’s Opp’n, Ex. 5

at 14. The Secretary is not a Department of Defense

Component, and thus, Ricci’s authority to address FOIA

requests is of no moment. In any event, assuming the

Secretary can delegate his authority under § 130c, it is

clear that such delegation could only be effected pursuant

to regulations adopted by the Secretary. See 10 U.S.C. §

130¢(g)(1).

60a

ment process). Accordingly, it is clear that the de-

fendant has failed to comply with the requirements

of 10 U.S.C. § 130c. Nonetheless, this Court will ex-

amine the parties’ remaining arguments in assessing

how to resolve the parties’ summary judgment mo-

tions.®

The Court turns now to the plaintiffs remaining

arguments. 10 U.S.C. § 130c(b)(1) requires the with-

holding of documents if “the information was pro-

vided by, otherwise made available by, or produced

in cooperation wth, a foreign government or interna-

tional organization.” 10 U.S.C. § 130c(b)(1). The

plaintiff contends that documents 2, 78, 81, and 85

cannot be withheld under this provision because the

documents were sent from DoD officials to the for-

eign governments, rather than having been received

from those foreign governments. Pl.’s Mem. at 34.

Specifically, documents 2, 81, and 85 are correspon-

dence (or draft correspondence) from the General

Counsel of the DoD to the Attorney General of the

United Kingdom. Def.’s Mem., Ex. 11 (Vaughn In-

dex) at 2, 57-58, 62-63. Each of these correspon-

dences responded to specific issues raised by the At-

torney General of the United Kingdom regarding the

military commission proceedings. Jd. And document

8 As this Court concludes below, the defendant has satis-

fied the other requirements for withholding documents

pursuant to 10 U.S.C. § 130c. Accordingly, this Court will

not require that the defendant, at this time, release the

documents solely because they have failed to properly des-

ignate the documents as protected by 10 U.S.C. § 130c.

Rather, this Court will afford the defendant an opportu-

nity to cure the defect discussed herein. Failure to do so,

however, will result in this Court ordering the documents

released.

6la

78 is a correspondence from the General Counsel of

the DoD to the British Ambassador to the United

States which responded to concerns from the United

Kingdom regarding the military commissions. /d. at

53-54. The plaintiff asks this Court to read §

130c(b)(1) narrowly so as to exempt from disclosure

only correspondence from foreign governments to the

United States. Pl.’s Mem. at 34. Thus, the plaintiff

opines that since these correspondences emanate

from the United States, they are not protected by 10

U.S.C. § 130c(b)(1). Id. This Court cannot accept the

plaintiffs reading of the statute.

It is important to note at the outset that there is

a dearth of case law construing § 130c in the FOIA

context. In fact, the parties are only able to provide

this Court with two cases in which courts have con-

sidered whether § 130c could be invoked to withhold

documents under Exemption 3 of the FOIA, Def.’s

Opp’n at 13-14, and this Court can find no others.

These cases, although not binding on this Court, are

persuasive. In fact, in ACLU v. Dep't of Defense, No.

04-CV-4151 (S.D.N.Y. 2004), a member of the Dis-

trict Court for the Southern District of New York re-

jected a similar argument that 10 U.S.C. § 130c(b)(1)

should be read narrowly. Def.’s Opp’n, Ex. 7. In that

case, the District Court was presented with the ques-

tion of whether communications from the DoD to the

International Committee of the Red Cross (“Red

Cross”) were properly withheld pursuant to 10

U.S.C. § 130c. Jd. at 7-8. Those communications ex-

pressed concerns raised by the Red Cross about the

treatment of detainees at Guantanamo Bay, Cuba.

Id. In concluding that § 130c protected those docu-

ments from disclosure, the Court found that “if the

[Red Cross] has made a point [,] and the government

Se a a a eee

= le | —"° = -

62a

in considering the point and in responding to the

point expresses itself in a way that would allow the

reader to see the point communicated by the [Red

Cross], I would think the . . . privilege would apply.”

Id. at 8. The conclusion is consistent with the plain

language of the statute which prohibits the disclo-

eure of “information . . . provided by, otherwise made

available by, or produced in cooperation with, a for-

eign government or international organization.” 10

U.S.C. § 130c(b)(1) (emphasis added). The statute

therefore protects certain information produced by

the United States so long as it was created in coop-

eration with a foreign government or an interna-

tional organization. Thus, the origin of a document

is not determinative. Indeed, it would be absurd to

conclude that the government may only withhold in-

formation relayed from the foreign government, but

not a document produced by the United States in co-

operation with the foreign government even though

the United States’s generated documents make clear

the substance of the information provided by the for-

eign government.

In this case, the Vaughn index states that all

four challenged documents are responses to issues

raised by officials of the United Kingdom. By re-

sponding to this request for sensitive information,

these documents themselves fall under the ambit of

10 U.S.C. § 130c, as a reader would undoubtedly be

made aware of the issues raised by the United King-

dom upon reading them. Thus, so long as the infor-

mation contained in the letters satisfies the other re-

quirements of § 130c(b), the correspondence clearly

relate to information that is protected by the statute

and can properly be withheld.

i ie, eae. . eae

gs oe i li eee, =—l, oe —_— 4 ed niet Oc ee) = ea ' = = =. ~~. ae

63a

The plaintiffs third contention is also without

merit. 10 U.S.C. § 130c(b)(2) requires that the for-

eign government indicate in writing that they are

withholding from public disclosure the information

provided to the United States. The plaintiff contends

that the Ricci declaration is devoid of any reference

to a written representation from a foreign govern-

ment stating that it is withholding from public dis-

closure the information which is the subject of its in-

quiry. Pl.’s Mem. at 34. In fact, the plaintiff con-

tends that the British government has disclosed

much of the information it is requesting. Jd. This

Court agrees that the Ricci declaration does not al-

lege the existence of a written statement of non-

disclosure from a foreign government. Ricci Decl. 4

19. However, the defendant, no doubt appreciating

its failure to comply with this requirement, clarified

in a later declaration submitted by Ms. Heckler that

it “h[as] since received written communications from

the foreign governments regarding this matter.

These communications make clear that the foreign

governments are withholding this information from

public disclosure and that they are asking the De-

partment of Defense also to not release the informa-

tion to the public.” Pl.’s Reply, Ex. 4 | 7. It is appar-

ent that when Ricci submitted her declaration that

the foreign governments had made no written repre-

sentation indicating its desire that the requested in-

formation not be released to the public. Thus, any

attempt to withhold disclosure under § 130c based on

Ms. Ricci’s declaration surely would have failed. It is

curious then why the defendant would even attempt

to assert § 130c based on what Ricci said. However,

the defendant now claims that the foreign govern-

ments have made such representations, albeit in the

64a

final stages of the briefing of the parties’ dispositive

motions. This Court has no reason to doubt the ve-

racity of this new declaration, and for the purpose of

addressing the current motions will rely upon the

representations made by Ms. Heckler. Public Citi-

zen, 276 F.3d at 645. However, if the defendant

again reasserts Exemption 3 and § 130c, the Court

will require that the defendant submit copies of

these written representations.®

The plaintiff also posits that 10 U.S.C. §

130c(b)(2) cannot be invoked because the foreign

governments themselves have made clear their posi-

tions regarding military comnmtissioms. P!|.’s Mem. at

29-30, 34. Admittedly, the foremgn governments have

expressed, in a general sense, their positions on the

9 This Court is troubled by the defendant’s initia) reli-

ance on 10 U.S.C. § 130e, as the Hecker declaration

makes clear that the requirements of § 130c(b)(2) were

not complied with at the time the documents were with-

held and at the time summary judgment briefing com-

menced in this action. While the Court has no reason to

believe that the defendant, through the Ricci Declaration,

attempted to deceive either the Court or the plaintiff, it is

clear it had no legal basis for its position based on her

declaration. Nevertheless, the defendant has now satis-

fied all but one of the requirements of 10 U.S.C. § 130c. 7

And because this Court is permitting the defendant to |

correct the failure to have the proper person designate

documents that are being withheld under § 1i30c, the

Court will also require the defendant to submit to the

Court copies of the written representations from the for-

eign governments. [f, for some reason, the defendant be-

lieves these communications also cannot be made public,

the Court will consider permitting the defendant, upon

motion, to submit them ex parte for the Court's in camera

inspection. |

~~ a oe, wee ee 6 ease ee eS ee ee

9 tl tl als i i ie eel

ll —— -F 2 | es

65a

military commissions. Jd. at 30. However, these

general expressions do not establish that the discrete

information provided in the correspondence the

plaintiff seeks to acquire have been released to the

public by the foreign governments. Moreover, the de-

fendant has submitted affidavits indicating that the

foreign governments have not released the informa-

tion to the public. There is simply no “authority for

the proposition that the Secretary of Defense must

look behind” the written statements for non-

disclosure provided by a foreign government to de-

termine whether the foreign government desires to

withhold the information from the public. Gerstein v.

Dep't of Defense, No. 03-5193, slip-op. at 7-8 (N.D.

Ca. Dec. 21, 2004). Rather, the Secretary can rely on

the written representations made by the foreign gov-

ernments and need not engage in an exhaustive re-

view to determine their veracity. But in any event,

here, the public expressions of general views about

military commissions by the foreign countries does

not encompass the more detailed views on the sub-

ject that have not been publicly disclosed.

The plaintiff next argues that the defendant

failed to comply with 10 U.S.C. § 130c(b)(3). Pl.’s

Mem. at 34-36. This argument is also without merit.

Under § 130c(b)(3), the defendant must satisfy at

least one of three following requirements:

(A) The foreign government or interna-

tional organization requests, in writing, that

the information be withheld.

(B) The information was provided or

made available to the United States Gov-

ernment on the condition that it not be re-

leased to the public.

66a

tion, or is in a category of information, that

the national security official concerned has

specified in regulations prescribed under

subsection (f) as being information the re-

lease of which would have an adverse effect

on the ability of the United States Govern-

ment to obtain the same or similar informa-

tion in the future.

10 U.S.C. § 130c(b)(3). Based on the declarations

submitted to this Court, it is clear that the defendant

has complied with § 130(b)(3)(A) and (B). As previ-

ously discussed, following the commencement of this

litigation, the foreign governments submitted, in

writing, their position that the information at issue

here was provided to the United States on the condi-

tion that it be kept secret from the public. Def.’s

Opp’n, Ex. 4 4 7. Moreover, earlier declarations

make clear that the information contained in the

documents was “provided in confidence on the condi-

tion that they mot be released to the public.” Ricci

Decl. 4 19. It is well-settled in this Circuit that this

Court may properly rely upon the declaration sub-

mitted by the parties in support of their summary

judgment motions. Public Citizen, 276 F.3d at 645.

Here, this Court can see no reason why these decla-

rations are not sufficient, as they are not conclusory

or contradicted by other evidence. Accordingly, the

challenged documents have satisfied the require-

ments of 10 U.&.C. § 130c(b)(3).

Finally, the plaintiff alleges that the defendant

has failed to comply with 10 U.S.C. § 130c(d)(3), be-

cause no date certain for the release of the informa-

tion was designated. Pl.’s Mem. at 36 n.28; Pl.’s Re-

ply at 15-16. The plaintiffs argument has no merit.

67a

The plaintiff claims that the national security official

who invoked § 130c was required to set a date when

the information contained in the withheld documents

can be released because the foreign governments did

not identify a specific date. Pl.’s Reply at 15. How-

ever, the plaintiff misconstrues the circumstances

under which § 130c(d)(3) is applicable.

10 U.S.C. § 130c(d) sets forth a formula for de-

termining if, and when, documents protected from

disclosure should released to the public. The plain-

tiff concedes that the information at issue here came

into the possession of the United States after the en-

actment of Floyd D. Spence National Defense Au-

thorization Act for Fiscal Year 2001. Pl.’s Mem. at

33. Thus, the release of this information is con-

trolled by 10 U.S.C. § 130c(d)(2). Under this provi-

sion, information can be withheld only until the date

specified by the foreign government. Id. §

130c(d)(2)(B). Here, however, the foreign govern-

ments have failed to specify a date for the release of

the information. Thus, the plaintiff opines that 10

U.S.C. § 130c(d)(3) applies, and the national security

official was required to select a date for the release of

the information after considering the requests of the

foreign government who provided the information.

10 U.S.C. § 130c(d)(3). While the plaintiff is correct

in its reading of the statute, it completely ignores

another provision of the statute. Under §

130c(d)(2)(C), § 130c(d)(3) applies only if the informa-

tion requested “came into possession or under the

control of the United States more than ten years be-

fore the date on which the request is received by an

agency.” Thus, unless the information came into the

possession of the United States more than ten years

before the request for disclosure was made, the Court

68a

need not engage in the analysis called for in §

130c(d)(3). Rather, this determination need only be

made if the national security official receives a re-

quest for documents that have been under the pos-

session and control of the United States for ten or

more years. Accordingly, the statute presumes in

the situation here that there will be nondisclosure

for at least ten years from the time the requested in-

formation “came into the possession or control of the

United States.” 10 U.S.C. § 130c(d)(2)(C). _With the

plaintiff conceding that the information came into

the possession of the United States after 2001, it is

clear, contrary to the plaintiff's suggestion, that the

national security official is not yet required to desig-

nate a date certain for the release of the infcrmation.

Rather, such a designation need only be made if a

request for the documents is received after the

United States has been in possession of the docu-

ments for more than ten years, and after the gov-

ernment confers with the foreign governments. See

10 U.S.C. § 130c(d). Here, the documents in question

were received by the United States between June

and October 2003. Def.’s Mem., Ex. 11 at 2, 53, 57,

62. Thus, the agency does not need to designate a

specific date for the release of the documents until a

request for the documents is received after the

United States has been in possession of the docu-

ments for more than ten years, which would be in

October 2013.

Based on the foregoing discussion, it would seem

that the documents withheld by the defendant likely

qualify for protection under 10 U.S.C. § 130c. How-

ever, the defendant has failed to properly invoke this

statutory provision because the Secretary, pursuant

69a

to his duty under the statute, has not designated the

documents as eligible for exemption under § 130c.

C. Exemption 5 of the FOIA

Exemption 5 of the FOIA’s disclosure require-

ments protects from disclosure “inter-agency or in-

tra-agency memorandums or letters which would not

be available by law to a party... in litigation with

the agency.” 5 U.S.C. § 552(b)(5). “In other words,

Exemption 5 incorporates ‘all civil discovery rules”

into the exemption. Defenders of Wildlife v. Dep't of

Agriculture, 311 F. Supp. 2d 44, 57 (D.D.C. 2004)

(quoting Martin v. Office of Special Counsel, 819 F.2d

1181, 1185 (D.C. Cir. 1987)). Thus, courts have in-

corporated the following three traditional civil dis-

covery privileges under Exemption 5: (1) the delib-

erative process privilege; (2) the attorney-client privi-

lege; and (3) the attorney work-product privilege.

Id., see also Natl Labor Relations Bd. v. Sears, Roe-

buck & Co., 421 U.S. 132, 149 (1975); Coastal States

Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C.

Cir. 1980). However, “Congress intended to confine

exemption (b)(5) ‘as narrowly as is consistent with ef-

ficient Government operation.” Puerto Rico, 823 F.2d

at 584 (quoting Coastal States, 617 F.2d at 868). Any

challenge to nondisclosure under Exemption 5 first

requires the Court to determine whether the with-

held documents qualify as “intra-agency” or “inter-

agency” documents and second to assess whether one

of the three enumerated privileges applies. Here, the

plaintiff raises a number of challenges to the defen-

dant’s assertion of the exemption, and the Court will

now address each prong of the test in turn.!°

0 Any legal analysis under Exemption 5 of the FOIA re-

quires the Court to first determine whether there are “in-

70a

1. Are Comments from Non-Agency Lawyers

Protected from Disclosure as “Intra-Agency”

or “Inter-Agency” Documents?

Fundamental to the assertion of Exemption 5 is

the requirement that the documents being withheld

qualify as either “inter-agency” or “intra-agency”

documents. The defendant claims that it properly

withheld the documents here pursuant to the delib-

erative process privilege of Exemption 5 because they

reflect the views and opinion of “DoD officials, attor-

neys, and consultants” in connection with the prom-

ulgation of regulations detailing the process for con-

ducting military commissions, and thus qualify as ei-

ther intra-agency or int

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