United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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)
Rajesh De argued the cause for the appellant. Andrew J.
Pincus was on brief. Mark H. Lynch entered an appearance.
Michael L. Waldman was on brief for amicus curiae The
Constitution Project in support of the appellant.
Claire M. Whitaker, Assistant United States Attorney,
argued the cause for the appellee. Jeffrey A. Taylor, United
States Attorney, Michael J. Ryan, Assistant United States
Attorney, and Karen L. Hecker, Senior Attorney, and Stewart F.
Aly, Attorney, United States Department of Defense, were on
brief. R. Craig Lawrence, Assistant United States Attorney,
entered an appearance.
2
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 Information 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 Defense (DoD) solicited to
promulgate regulations establishing terrorist trial commissions.
The district court granted summary judgment in DoD’s favor,
concluding that the documents are exempt from disclosure under
FOIA Exemption 5, id. § 552(b)(5). See Nat’l 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 Exemption 5 and therefore affirm the judgment of the
district court.
I.
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 terrorism against the United States or has
knowingly harbored such persons—“shall, when tried, be tried
by military commission for any and all offenses triable by
military commission that such individual is alleged to have
committed.” Id. at 57,834. The Military Order further directed
that the Secretary of Defense “shall issue such orders and
regulations, including orders for the appointment of one or more
3
military commissions, as may be necessary to carry out” the
trials. Id.1
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 . . .;
(2) a full and fair trial, with the military
commission 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
information 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
protected 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
proceedings;
(5) conduct of the prosecution by one or more
attorneys designated by the Secretary of Defense and
conduct 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
4
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
sought the opinions and recommendations of these
outside consultants because their previous experience in
the government and/or their expertise made them
uniquely qualified to provide advice to the General
Counsel’s office on the Military Commissions
procedures. Each was asked to provide their comments
on the proposed Military Commission procedures.
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] consult 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.” Decl. of Paul W. Cobb, Jr., former
Dep. Gen. Counsel, Office of Gen. Counsel, DoD, (Cobb Decl.)
3 (Feb. 16, 2005).3
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
decision 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).
3
The views of individuals who were “not consulted with on a
5
On October 3, 2003, NIMJ submitted a FOIA request to
DoD seeking
all written or electronic communications that the
Department (including the Secretary and General
Counsel) has either sent to or received 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 Orders, and
the Military Commission Instructions. This request
includes but is not limited to suggestions or comments
on 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.
Compl. ¶ 5 (quoting FOIA Request Letter, Oct. 3, 2003); see
Nat’l 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
Exemption 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’l Inst. of Military Justice, 404 F.
Supp. 2d at 342-47. In an opinion and order filed June 12, 2006,
continuing basis or with the understanding and expectation that their
comments would be kept in confidence” were not withheld as exempt.
Hecker Decl. 3-4.
6
the district court granted final summary judgment in DoD’s
favor and this appeal followed.
II.
NIMJ appeals the district court’s grant of summary judgment
as to the nineteen documents the court held exempt under FOIA
Exemption 5. Exemption 5 provides that FOIA “does not apply
to matters that are . . . 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). Relying heavily on the United States
Supreme Court’s decision in Department of the Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001),
NIMJ asserts 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 interprets “intra-agency” to
include agency records containing comments solicited from non-
governmental 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
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 process” privilege. See Dep’t of Interior v.
Klamath Water Users 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 ‘predecisional’ and a
part of the ‘deliberative process.’ ” Formaldehyde Inst. v. Dep’t of
Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989) (citing
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-52 (1975)). The
withheld documents are plainly both.
7
senators in response to a questionnaire they received from the
Department of Justice about procedures for selecting and
recommending potential 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:
When interpreted in light of its purpose, . . . the language
of Exemption 5 clearly embraces 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
recommendations of temporary consultants, as well as its
own employees. Such consultations are an integral part
of its deliberative process; to conduct this process in
public view would inhibit frank discussion of policy
matters and likely impair the quality of decisions.
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
consultants 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’ memorandum for
purposes of determining the applicability of Exemption 5.” Id.
at 790. Integral to the court’s analysis was the fact that the
documents sought “were generated by an initiative from the
8
Department of Justice, i.e., the questionnaire 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 American Journal of Epidemiology on a
report submitted for publication by a staff member of the
Centers for Disease Control (CDC). Relying largely on Ryan,
we found immaterial “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 employee or a temporary
consultant is irrelevant; the pertinent element is the role, if any,
that the document 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. Department of
Justice, 111 F.3d 168 (D.C. Cir. 1997), we held exempt from
disclosure records containing communications among former
President Reagan, the National Archives and the Department of
Justice and among former President Bush and the same agencies
5
The court observed that “[t]he questionnaire plus replies 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 executive 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 “[f]or example, the Department of Agriculture must have
bales of information in response to questionnaires.” Ryan, 617 F.2d
at 790 & n.29.
9
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)) (citing 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 Exemption 5. NIMJ attempts to distinguish those
cases factually but to no avail. NIMJ first asserts, for example,
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 argument overlooks the fact that
Formaldehyde Institute did involve private citizens (two outside
referees). NIMJ also contends that the “consultative
relationship” here is not, as it was in Public Citizen, “mandated
by statute,” id.—but neither was it in either Ryan or
Formaldehyde Institute.6 See Ryan, 617 F.2d at 784
6
NIMJ asserts, somewhat inaccurately, that “this Court in
Formaldehyde Institute focused on the statutory mandate underlying
the consultative process at issue.” Opening Br. at 16-17. In that case,
however, it was the decision, not the consultation, that was statutorily
mandated. See Formaldehyde Inst., 898 F.2d at 1124 (“Thus,
Congress has directed HHS to make precisely the kind of
‘deliberative’ decision HHS made as a result of a process that involved
HHS’ receipt of the Review Letter.” (emphasis in original)). In this
case, an equally “deliberative” decision was mandated by the Military
Order.
10
(questionnaires sent to senators in response to Executive Order
No. 12097 directing U.S. Attorney General to assist in
promulgating “standards 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 precedents, even if
otherwise controlling, have been “superseded” 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
proceedings. In rejecting the Government’s exemption claim,
the Court focused on the language in Exemption 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 Government may nevertheless qualify as an
‘intra-agency’ memorandum under Exemption 5” under the so-
called “consultant corollary” to Exemption 5. Id. at 9.
“Typically,” the Court added, “courts taking [this] view have
held that the exemption extends to communications between
Government agencies and outside consultants hired by them.”
Id. “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 prepared by
agency personnel might have done,” notwithstanding the
consultants “were independent contractors and were not
assumed to be subject to the degree of control that agency
11
employment could have entailed” and they were not necessarily
“devoid of a definite point of view.” Id. The Court concluded,
however, that the Indian Tribes in Klamath were not analogous
to government consultants.
The Court explained that “the fact about the consultant 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 advises 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 consultant functions
just as an employee would be expected to do.” Id. at 11. By
contrast the Indian Tribes “necessarily communicate with the
Bureau with their own, albeit entirely legitimate, interests in
mind.” Id. at 12. Although concluding that “this fact alone
distinguishes tribal communications from the consultants’
examples recognized by several Courts of Appeals,” 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.” Id. Finding
the circuit cases on outside consultants thus distinguishable, 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 binding 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 contrary authority from an en banc court or the Supreme
Court.” (citing Brewster v. Comm’r, 607 F.2d 1369, 1373 (D.C.
Cir. 1979))).7 It remains true that “ ‘federal agencies
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 recounted, in previous opinions this
12
occasionally will encounter problems outside their ken, and it
clearly is preferable that they enlist the help of outside experts
skilled at unravelling their knotty complexities.’ ”
Formaldehyde Inst., 889 F.2d at 1122 (quoting CNA Fin. Corp.
v. Donovan, 830 F.2d 1132, 1162 (D.C. Cir. 1987)). It 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 individuals DoD consulted had no individual
interests to promote in their submissions, as NIMJ itself
concedes. See Reply Br. at 4 n.1 (“The government is correct
that NIMJ has made no suggestion of personal interest in these
proceedings, nor does it intend to impugn the integrity of the
distinguished individuals 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 Association”—
“[s]ome of these comments were solicited; many were
not”—comments for which DoD did not claim the Exemption)
Circuit has repeatedly interpreted Exemption 5 to extend to documents
generated by non-agency individuals under our consultant corollary.
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 States v. Williams, 194 F.3d 100, 105 (D.C.
Cir. 1999) (stating whether Supreme Court opinion supersedes Circuit
precedent interpreting statute depends on whether opinion “effectively
overrules, i.e., “eviscerate[s]” precedent 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 different statute and,
based on those doubts, to depart from circuit precedent expressly
interpreting the statute . . . .”) (internal quotation omitted).
13
(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 communications is
a decision by an agency of the Government to support a claim
by the Tribe that is necessarily adverse to the interests of
competitors.” Klamath, 532 U.S. at 14. Further, although the
individuals DoD consulted are, as NIMJ notes, private citizens
rather than government employees or paid contract consultants,
we see 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
counsel based on their undisputed experience and qualifications.
See Ricci Decl. 10-11).8 Their contributions to DoD’s
deliberation in promulgating regulations were no less valuable
or confidential for the lack of compensation or formal contract.
8
They were an undisputedly distinguished group of individuals: a
former DoD General Counsel, a former Secretary 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 Bureau of Investigation, a former Secretary of the Army,
a former Assistant Trial Counsel at the Nuremberg International 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 Division, 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).
14
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 interest organizations sought disclosure of
documents held by eight federal agencies.9 The documents had
been prepared by the National Energy Policy Development
Group (NEPDG), which was established by the President and
composed of high ranking federal officials and employees
detailed from federal agencies. 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 prepare the documents for an agency.
We there acknowledged Klamath’s admonition that, to be
protected by Exemption 5, a document must not only be
pre-decisional 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 “[o]ur interpretation of Exemption 5”—that
documents held by agencies but prepared by the non-agency
NEPDG come within Exemption 5’s protection—“is not
inconsistent with its textual limitation to ‘intra-agency’ or
‘inter-agency’ communications”; “[r]ather it follows from the
principle, well established 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.’ ” Id. 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
9
The agencies were: the United States Departments of Agriculture,
Commerce, Energy, the Interior, Transportation and the Treasury, the
Environmental Protection Agency and the Federal Emergency
Management Agency. Judicial Watch, 412 F.3d at 127.
15
solicited by the agency, we find it entirely reasonable to deem
the resulting document to be an ‘intra-agency’ memorandum for
purposes of determining the applicability of Exemption 5.”
Ryan, 617 F.2d at 790, quoted in Judicial Watch, 412 F.3d at
130 (concluding that “[n]ot 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 entirely of
federal officials, would be anomalous indeed.” (internal citation
omitted)). We base our decision 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, NIMJ 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
inter- nor intra-agency. Contrary to NIMJ’s contention, our
continued adherence to the consultant corollary does not
diminish the “independent vitality” of the statutory terms, as we
made clear in Judicial Watch. In Ryan we explained that “[i]n
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 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 temporary consultants. In this case, DoD
itself solicited the advice contained in the documents from the
individual nongovernmental lawyers for the agency’s own use
in promulgating terrorist trial commission regulations. Under
such circumstances, it is consistent 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
16
consistent with Klamath’s directive to hew to the language of
the statute. Indeed, Klamath itself acknowledges that
disinterested outside consultants “may be enough like the
agency’s own personnel to justify calling their communications
intra-agency.” 532 U.S. at 12.10
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 in Ryan, the senators’ questionnaire
responses were held exempt “even though we would expect a
Senator to have strong personal views on the matter”). 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
Exemption 5 beyond its permissible scope based on their
peculiar facts is an issue we need not and do not decide here.
10
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 documents (“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” documents. 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).
17
In applying the Ryan line of cases, we emphasize two factors
in their analyses that support our continued application of the
consultant corollary. First, as our cases make clear, the
expectation that communications will remain confidential is
crucial to eliciting candid and honest advice from outside
consultants. 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 discussion within the agency and thereby undermine the
agency’s ability to perform its functions.’ ” (quoting Dudman
Commc’ns Corp. v. Dep’t of Air Force, 815 F.2d 1565, 1568
(D.C. Cir. 1987))) (emphasis and alteration in Formaldehyde
Inst.); Pub. Citizen, 111 F.3d at 170 (“[F]or a President to be
able to give adequate assurances of confidentiality to his
advisors, the assurances must last beyond his tenure.”); Judicial
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 exchange 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 appearances . . . to the detriment of the
decisionmaking 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 materials would
18
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
affirmatively 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 solicited by the agency, we find
it entirely reasonable to deem the resulting document to be an
‘intra-agency’ memorandum for purposes of determining the
applicability 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, i.e., the
questionnaire sent out by the Department to the Senators.”);
Formaldehyde Inst., 889 F.2d at 1122 (“[I]t is unquestionably
true 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.” (emphasis
added; internal quotation omitted)).11 The dissent is therefore
11
In Formaldehyde Institute, the court rejected the FOIA
requester’s contention that Exemption 5 did not apply because “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 submission of
an article for publication.” Furthermore, it is undisputed that
reviewers’ comments are “expected to be confidential.” The
agency does not “solicit” reviews in the sense that it contracts
to receive 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
19
wrong to suggest, 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 “committee” 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 solicitation 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 discrete group of experts
(consistent with Circuit precedent) 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
membership on a nominal committee if it wishes to consider
documents containing their advice “intra-agency.” Nor does it
a mutual understanding between the agency and journals that
provide confidential reviews regarding how the agency will
use the reviews. The existence of such an arrangement 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).
20
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 troubled 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 Exemption 5 (a
scenario we expressly do not reach, see supra 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 professor” to join an “Ad Hoc Committee for
Advice on Legal Compliance” and indicated that a professor
who provided responsive comments would thereby consent to
membership on the Committee. There is nothing in the text of
Exemption 5 that would require such; what matters is the nature
of the relationship between the consultant and the agency, not
the formalities observed.
For the foregoing reasons, we conclude that the nineteen
documents NIMJ seeks are exempt from disclosure under FOIA
Exemption 5. 5 U.S.C. § 552(b)(5). Accordingly, the judgment
of the district court is affirmed.
So ordered.
TATEL, Circuit Judge, dissenting: In November 2001,
President Bush issued a military order authorizing 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 Coleman,
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 implausibility 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 outsiders if able to promise confidentiality. But I must
respectfully dissent because I believe the court’s holding does
exactly what the Supreme Court forbade in Department of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1
(2001): it makes “‘intra-agency’ . . . a purely conclusory term,
just a label to be placed on any document the Government
would find it valuable to keep confidential.” Id. at 12.
I.
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. 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).
2
DoD withheld the documents at issue here under FOIA
Exemption 5, which protects from disclosure “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). “To qualify, a
document must thus satisfy two conditions: its source must be
a Government agency, and it must fall within the ambit of a
privilege against discovery under judicial standards that
would govern litigation against the agency that holds it,” such
as the attorney-client, deliberative process, or attorney work
product privileges. 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 immediately 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
memorandum that is addressed both to and from employees of
a single agency.” Klamath, 532 U.S. at 9 (quoting DOJ v.
Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting)).
That said, several courts of appeals, including this one, “have
held that [Exemption 5] extends to communications between
Government agencies and outside consultants hired by them.”
Id. at 10 (emphasis added). For example, in Hoover v.
Department 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
(1st Cir. 1982), the First Circuit held that Exemption 5
3
protected 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 consultants, 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 interpret “intra-agency”: 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 documents they produce for the project “intra-
agency.” One could even imagine situations in which a
document written by a volunteer 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 outside 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 government’s argument flatly
ignores the statute’s text, as well as our obligation to construe
FOIA exemptions 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 Klamath undermines all of them.
4
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. Id. at 784.
Responding to a FOIA request 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
exclusive terms, but rather to include any
agency document that is part of the
deliberative 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
Department to the Senators. The Senators
replied to the questionnaire. . . . 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 resulting
document to be an “intra-agency”
memorandum 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 article for publication in a
peer-reviewed journal. After 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
5
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 neither
part of HHS nor one of HHS’[s] consultants,
the Review Letter is not entitled to Exemption
5 protections. . . .
....
. . . Ryan established, [however,] . . . that
“inter-agency” and “intra-agency” are not
rigidly exclusive terms, but rather embrace
any agency document that is part of the
deliberative process. Thus, both the Institute
and the District Court err in focusing on the
absence of any formal relationship between the
Journal’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 disclosure of
letters sent by former Presidents Reagan and Bush to the
National Archives and Records Administration regarding
access to their presidential papers. We held the letters
protected under Exemption 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
“intra-agency” for purposes of Exemption 5 if
they have been created for the purpose of
aiding the agency’s deliberative process. It is
6
irrelevant whether the author of the documents
is a regular agency employee or a temporary
consultant. Two circumstances make
application of this doctrine to the disputed
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 purposes, the
authority to assert the executive privilege
regarding Presidential communications. . . .
....
Second, the consultative relationship
involved here is not only explicit, but is
mandated 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
significant role even after he leaves office.
Id. at 170-71 (emphasis added) (citations and internal
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.”
7
That said, were Public Citizen, Ryan, and Formaldehyde
the only cases on point, we would undoubtedly 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
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
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 argued that its communications with the tribes
enjoyed Exemption 5 protection because confidential
communications 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 government for making a fundamental error:
[T]he Department’s argument skips a
necessary step, for it ignores the first condition
of Exemption 5. . . . The Department seems to
be saying 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.
There is, however, no textual justification
for draining the first condition of independent
8
vitality . . . .
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] extends to communications
between Government agencies 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 communications from paid
consultants could qualify for Exemption 5 protection,
communications from the tribes in Klamath could not because
unlike the typical consultant, 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 communications 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 draining the first condition of independent vitality.” Id. at
12. Thus, our earlier cases protecting communications from
outside consultants under Exemption 5 remain good law only
to the extent they give “independent vitality” to the meaning
of “intra-agency.”
9
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 rigidly 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 deliberative 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 process.”). And Public Citizen
holds 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.’” 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 reasoning 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.” 532 U.S. at 12.
Despite this crucial language from Klamath, the court
holds that our earlier 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 Exemption 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
10
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’ memorandum for purposes of . . .
Exemption 5.” 617 F.2d at 790. According to the court, this
test from Ryan survives Klamath because it somehow gives
“independent vitality” to “intra-agency.” I would agree if the
court read this passage from Ryan—and limited its holding
here—to mean 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 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 “intra-
agency,” this test redefines that term. “Intra” means “within,”
and “[i]n the absence of an indication 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 indication that it intended a
previously unheard of definition of “intra,” so we are bound
by the normal meaning of the term. See United States v.
Weber Aircraft Corp., 465 U.S. 792, 802 (1984) (stating that
“compelling 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,” Majority 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 “common sense interpretation of ‘intra-
11
agency.’” Id. 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.” Id. at 19.
Requiring formality, however, does nothing to prevent absurd
results. 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 responded
“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 solicitation suffices if addressed to a “discrete
group of experts.” Id. 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.” Apparently unable to
distinguish away this ridiculous consequence of its rule, the
court instead attacks my reading of the statute as lacking any
basis in Exemption 5’s text and leading to equally absurd
results. Id. The court is incorrect on both counts.
My discussion of the plausible outer limits of Exemption
5—as possibly including some paid consultants and unpaid
members of official agency committees—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
committees have come “within” the agency. By contrast, the
principles the court develops in response to the troubling
examples in the previous paragraph have no basis in
Exemption 5’s text. An agency’s mere request for advice, no
12
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,
“intra-agency” has no meaning. Moreover, contrary to the
court’s claim, nothing I 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 consultants 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 attempt to game Exemption 5, but
also because there would be no meaningful indicators that the
professors had actually come within the agency, such as might
exist for members of official agency committees that meet
and consult regularly with agency officials. Making matters
even worse, such a “committee” 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 experts who submitted
comments do not qualify.
Of course, I understand the court’s desire to interpret
Exemption 5 to accomplish what it perceives to be that
exemption’s goal, but we may not use statutory purpose to
produce an unreasonable interpretation. See Freeman v. B &
B Assocs., 790 F.2d 145, 149 (D.C. Cir. 1986) (“[W]e will not
ignore the words of the statute in pursuit of some disembodied
13
congressional purpose.”). “[T]hat Congress might have acted
with greater clarity or foresight” by protecting some
communications from outside volunteers “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 certainly 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, “disclosure, 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
supremacy 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)).
Finally, and crucially, the court’s definition of “intra-
agency” disregards the Supreme Court’s command that FOIA
exemptions “be narrowly construed,” 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.
14
Despite these problems with its approach, the court
maintains that our precedent demands its result. It offers a
number of reasons for this conclusion, each of which I think
flawed.
To begin with, the court finds “no basis to jettison our
binding circuit precedent,” Majority Op. at 11, because
Klamath never determined whether consultants’ reports “may
qualify as intra-agency under Exemption 5,” 532 U.S. at 12.
But Klamath did decide 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 relies, 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 under
the expansive definition of “intra-agency” the court adopts
today, Formaldehyde would have come out the opposite way,
for there the agency did not solicit 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 . . . determine
. . . that a prior holding has been superseded, 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 differentiate them from the ‘typical’
15
outside agency consultants.” Majority Op. at 13. But the lack
of a contract or compensation matters. For one thing,
contracting 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,’” Majority Op. at 16 (quoting Klamath, 532 U.S. at
12), it ignores that Klamath was referring to “communications
between Government agencies and outside consultants 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 Energy, 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 Development Group (NEPDG)—a body
composed entirely 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 rationale, 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
documents were therefore protected under earlier decisions
16
holding that documents prepared by presidential 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 cases we had established “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.’” 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 resulting document to be an ‘intra-agency’
memorandum for purposes of . . . Exemption 5.” Id. (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 volunteers qualify as “intra-
agency,” for no such documents were at issue in Judicial
Watch. All we actually 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.”
II.
Whether agencies should be able to withhold
communications they solicit from outside volunteers is a
difficult policy question about which reasonable people
17
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 improve 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 whatever it
thinks they should, but rather for Congress to hold hearings,
determine whether it wishes to protect 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 (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 Congress did not, and the words simply will not
stretch to cover this situation . . . .” Id. at 574. Because
Exemption 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 documents public.