# Petition for Writ of Certiorari — Justice Justice v. Department of Defense (No. 08-125) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0173%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text 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 i 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). i 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 FE Re OTT BRD cccccsccccsnccseccsscoccscocscsesessnesd i PRP SU IEIT DE csncvcccccccsecccccescessescesescecsseess ii Te SI FA BIE BBE oor ccc ccccccccsescscsssecsceseccosenes v Te csnsaccnhdeentnnaennisesivdodnntons l I a ceespnennemnielly 1 STATUTORY PROVISION INVOLVED................... l od css sminhonenenensneti 2 ee I isis csscasncecenvesnsceruveins 3 B. The Proceedings In The District ila iat easier aieeehlidiaiidksamsssscteoscenses 6 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 vl 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 — 2 xk (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 3 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. 4 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 9) 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- 6 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 7 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. 8 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 9 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. 10 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. 11 “(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). 12 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. 13 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 14 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 15 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 16 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). 17 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- 18 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 19 (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- 20 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 21 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. : > fi > ‘ . 4 » ¢ . f Z ‘ 4 } r, 22 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 N is 2 Z = < la 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 v. 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- 2a 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. L. 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 ...; 3a 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). 4a 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. 5a 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- 6a 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. 7a 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- 8a 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. 9a 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- : d 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). » $ ; ¢ q y 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. 1. 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.” I. 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. : ; ; : : a 4la APPENDIX B NATIONAL INSTITUTE OF MILITARY JUSTICE, PLAINTIFF, V. 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0173%3A1. Public record. Not legal advice.