National Ass'n of Home Builders v. Norton

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 4, 2002 Decided November 5, 2002

No. 01-5283

National Association of Home Builders,
Appellant

v.

Gale A. Norton, Secretary of Interior, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 99cv01923)

Rafe Petersen argued the cause for appellant. With him on
the briefs was Lawrence R. Liebesman. Duane J. Desiderio
entered an appearance.

David J. Ball, Jr., Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney.

 Before: Edwards, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: The principal issue in this appeal is
whether Exemption 6 of the Freedom of Information Act
("FOIA"), 5 U.S.C. s 552(b)(6) (2000), applies to site-specific
information about the location of an endangered species
where disclosure might identify individuals' private property.
The National Association of Home Builders ("NAHB") ap-
peals the grant of summary judgment to the Secretary of the
Interior on NAHB's request for release of information on the
location of nesting sites of the cactus ferruginous pygmy owl
in Arizona. The Secretary provided NAHB with numerous
documents on the location of the owl, but, invoking several
FOIA exemptions, the Secretary redacted the documents to
conceal most of the site-specific location that NAHB sought.
Assuming that the requested files are "similar files" under
Exemption 6, we hold, upon de novo review, that the public
interest in disclosure outweighs the privacy interests re-
flected in the Secretary's evidence. Accordingly, because
Exemptions 3, 4, and 5 do not bar release of the requested
documents, we reverse the grant of summary judgment and
remand the case with instructions to order the Secretary to
release the site-specific information without revealing individ-
ual property owners' names, which NAHB no longer re-
quests.

I.

In 1997 the Secretary of the Interior designated the pygmy
owl as an endangered species and two years later exercised
authority under the Endangered Species Act to designate
critical habitats for the pygmy owl in Arizona. 16 U.S.C.
s 1533(a) (2000); Determination of Endangered Status for
the Cactus Ferruginous Pygmy-Owl in Arizona, 62 Fed. Reg.
10,730 (Mar. 10, 1997) (to be codified at 50 C.F.R. pt. 17);
Designation of Critical Habitat for the Cactus Ferruginous
Pygmy-Owl, 64 Fed. Reg. 37,419, 37,423-25 (July 12, 1999)
(to be codified as 50 C.F.R. pt. 17) ("1999 Final Rule"). As a
result, large tracts of land in southwest Arizona--over

731,000 acres--were set aside as critical habitat for the owl,
alerting "the public as well as land-managing agencies to the
importance of these areas." 64 Fed. Reg. at 37,419, 37,422.
In the Final Rule, the Secretary explained that he "used data
on known pygmy-owl locations"--the site-specific information
that NAHB now seeks--initially to identify "important areas"
for the owl. Id. at 37,423. The Secretary then used biologi-
cal information to connect these "important areas" to deter-
mine the owl's likely habitats. Id.

In 1998, NAHB filed a FOIA request seeking "previously
documented, site-specific locations, with appropriate address-
es, identified landmarks, parcel or subdivision maps, poly-
gons, or other points of reference sufficient to allow an
average person to locate the property where members of the
species are known or believed to exist." The Secretary,
acting through the Fish and Wildlife Service ("FWS"), re-
sponded to the request by producing hundreds of documents
related to the location of pygmy owls. The Secretary redact-
ed these documents, however, to conceal most of the site-
specific locations that NAHB sought. Specifically, the Secre-
tary redacted all section information, site directions, site
names, and the names and addresses of owners of private
lands on which the pygmy owls and their nests have been
located.

Dissatisfied with the Secretary's response, NAHB filed this
lawsuit to compel disclosure of the owl-sighting information
on the grounds that NAHB was entitled to the data as a
matter of law under FOIA. The Secretary defended the
withholding of information under four FOIA Exemptions:
Exemption 3, for information "specifically exempted from
disclosure" by another statute; Exemption 4, for "trade se-
crets and commercial or financial information obtained from a
person and privileged or confidential"; Exemption 5, for
"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"; and Exemption 6, for "person-
nel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal
privacy...." 5 U.S.C. s 552(b)(3)-(6). The Secretary pre-

sented the affidavit of FWS Director Jamie Rappaport Clark,
which recounted, in pertinent part, experiences in Texas and
Arizona, where bird enthusiasts traveled to the location of
pygmy owl sightings and adversely affected both the pygmy
owls and the private property owners. In Clark's opinion,
such incidents have created in landowners a "well founded"
fear that birdwatchers, in the hopes of glimpsing the owl, will
unlawfully invade the landowners' private property.

The district court granted summary judgment for the
Secretary, ruling that the Secretary properly redacted the
information under Exemption 6, but that Exemptions 3, 4,
and 5 did not apply. The court, relying on the observations
in Texas and the Arizona incident, concluded that "releasing
the pygmy owl data would result in an unwarranted invasion
of privacy." The court recognized that withholding the infor-
mation would deny the public information that would enable it
to locate the pygmy owl's nesting sites, and that the public
would therefore be unable to determine whether the Secre-
tary had properly designated critical habitats for the owl.
Still, the district court was satisfied that the Secretary's
disclosure in the 1999 Final Rule of the method by which
critical habitats are designated was sufficient to render the
decisionmaking process clear, "even though the ultimate deci-
sions remain secret."

II.

The Endangered Species Act instructs the Secretary to
"determine whether any species is an endangered species or a
threatened species because of" a range of enumerated factors,
including "the present or threatened destruction, modifica-
tion, or curtailment of its habitat or range...." 16 U.S.C.
s 1533(a)(1). Once the Secretary identifies a species as
endangered, the Act imposes penalties upon "any person"
who engages in certain prohibited actions with respect to the
species. Id. s 1538(a). The Act also provides that the
Secretary, "to the maximum extent prudent and determin-
able," shall "designate any habitat of [an endangered or
threatened species] which is then considered to be a critical

habitat...." Id. s 1533(a)(3). The Act specifies that the
Secretary should base the critical habitat designation on "the
best scientific data available" and should consider "the eco-
nomic impact, and any other relevant impact, of specifying
any particular area as a critical habitat." s 1533(b)(2). In
the 1999 Final Rule, the Secretary explained that, in making
critical habitat designations, the information about the loca-
tion of an endangered species is used to form "an intercon-
nected system of suitable and potential habitat areas...."
64 Fed. Reg. at 37,423. "[W]ithin the delineated critical
habitat boundaries," the Secretary noted, "only lands contain-
ing, or ... likely to develop, those habitat components that
are essential for the primary biological needs of the pygmy-
owl are considered critical habitat." Id.

The purpose of the Freedom of Information Act, as the
Supreme Court instructed in Department of the Air Force v.
Rose, is " 'to pierce the veil of administrative secrecy and
open agency action to the light of public scrutiny....' " 425
U.S. 352, 361 (1976) (citation omitted). FOIA reflects " 'a
general philosophy of full agency disclosure unless informa-
tion is exempted under clearly delineated statutory lan-
guage.' " Id. at 360-61 (quoting S. Rep. No. 813, 89th Cong.,
1st Sess., 3 (1965)). Although Congress enumerated nine
exemptions from the disclosure requirement, "these limited
exemptions do not obscure the basic policy that disclosure,
not secrecy, is the dominant objective of the Act." Id. at 361;
see also United States Dep't of State v. Ray, 502 U.S. 164, 173
(1991); United States Dep't of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 773 (1989). At all times
courts must bear in mind that FOIA mandates a "strong
presumption in favor of disclosure," Ray, 502 U.S. at 173, and
that the statutory exemptions, which are exclusive, are to be
"narrowly construed," Rose, 425 U.S. at 361. In reviewing de
novo a grant of summary judgment for the government in a
FOIA case, the court therefore remains "mindful that the
'burden is on the agency' to show that requested material
falls within a FOIA exemption." Petroleum Info. Corp. v.
United States Dep't of the Interior, 976 F.2d 1429, 1433 (D.C.
Cir. 1992) (citations omitted).

 A.

Under Exemption 6, a federal agency may withhold "per-
sonnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of
personal privacy." 5 U.S.C. s 552(b)(6). Thus, the threshold
question is whether the requested information is contained in
a personnel, medical, or similar file. United States Dep't of
State v. Wash. Post Co., 456 U.S. 595, 598 (1982); N.Y. Times
Co. v. NASA, 920 F.2d 1002, 1004 (D.C. Cir. 1990) (en banc).
If it is, then the court must determine whether the informa-
tion is of such a nature that its disclosure would constitute a
clearly unwarranted privacy invasion. Dep't of State v. Wash.
Post, 456 U.S. at 498; N.Y. Times Co. v. NASA, 920 F.2d at
1004. This second inquiry requires the court "to balance 'the
individual's right of privacy' against the basic policy of open-
ing 'agency action to the light of public scrutiny'...." Ray,
502 U.S. at 175 (quoting Rose, 425 U.S. at 372). In undertak-
ing this analysis, the court is guided by the instruction that,
"under Exemption 6, the presumption in favor of disclosure is
as strong as can be found anywhere in the Act." Wash. Post
Co. v. United States Dep't of Health and Human Servs., 690
F.2d 252, 261 (D.C. Cir. 1982).

In considering the scope of the "similar files" language in
Exemption 6, the Supreme Court has made clear that infor-
mation that "applies to a particular individual" may qualify
for protection. Dep't of State v. Wash. Post, 456 U.S. at 602.
The Court explained in Washington Post that Congress in-
tended the phrase "similar files" to have "a broad, rather
than a narrow, meaning." Id. at 600. This court accordingly
has observed that Exemption 6 "is designed to protect per-
sonal information in public records, even if it is not embar-
rassing or of an intimate nature...." Nat'l Ass'n of Retired
Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989).
To date, courts interpreting the phrase have considered pri-
marily government files that were maintained on a specific
individual or group. For example, Reporters Committee, 489
U.S. at 749, involved a request for FBI "rap sheets"--
criminal records that identified particular individuals--and
Ray, 502 U.S. at 166, involved a request for "information

about Haitian nationals who had attempted to emigrate ille-
gally to the United States and were involuntarily returned to
Haiti." Also, in New York Times Co. v. NASA, this court
broadly interpreted the phrase to encompass a recording of a
person's "voice inflection at a particular moment," which the
court viewed as highly "personal information" pertaining to
specific individuals. 920 F.2d at 1005.

The files that NAHB seeks are not files that would normal-
ly be described as "detailed Government records on an indi-
vidual." Dep't of State v. Wash. Post, 456 U.S. at 602. The
Secretary does not suggest that the files contain information
on a person's date or place of birth, marriage or employment
history, or other intimate details or "damaging information."
Id. at 601. Rather, NAHB seeks only the government's files
showing where pygmy owls and their nests had been sighted
in Arizona. Exemption 6's "similar files" do not include this
geographic information, NAHB contends, because such an
expansive reading would mean that any government docu-
ment referring to an individual in some manner as to identify
that individual would fall within the exemption. At oral
argument NAHB clarified that it does not seek release of any
individual property owners' names; instead, it requests only
the site information, such as the square and lot number where
the owls were sighted. However, to the extent that square
and lot information can lead to identification of individual
property owners through a search of state records, the infor-
mation is at least arguably personal information that falls
within the category of "similar files," for the inquiry turns on
"whether the information in the file 'applies to a particular
individual,' " not " 'the nature of the file[ ] in which the
information [is] contained'...." N.Y. Times Co. v. NASA,
920 F.2d at 1007 (quoting Dep't of State v. Wash. Post, 456
U.S. at 599, 602).

The court need not resolve whether the pygmy owl records
constitute "similar files" under Exemption 6. The Supreme
Court has embraced the legislative history stating that " 'the
balancing of private against public interests, not the nature of
the files in which the information was contained, should limit
the scope of the exemption.' " Dep't of State v. Wash. Post,

456 U.S. at 599 (quoting S. Rep. No. 813, 89th Cong., 1st
Sess., 9 (1965)). Accordingly, we turn to those interests,
assuming without deciding that the requested pygmy owl
records are "similar files" under Exemption 6.

To establish that the release of information contained in
government files would result in a clearly unwarranted inva-
sion of privacy, the court first asks whether disclosure "would
compromise a substantial, as opposed to a de minimis, priva-
cy interest." Horner, 879 F.2d at 874. If a significant
privacy interest is at stake, the court then must weigh that
interest "against the public interest in the release of the
records in order to determine whether, on balance, disclosure
would work a clearly unwarranted invasion of personal priva-
cy." Id. (citations omitted). The public interest to be
weighed against the privacy interest in this balancing test is
"the extent to which disclosure would serve the 'core pur-
poses of the FOIA' " by " 'contribut[ing] significantly to public
understanding of the operations or activities of the govern-
ment.' " United States Dep't of Def. v. FLRA, 510 U.S. 487,
495 (1994) (quoting Reporters Comm., 489 U.S. at 775).
Thus, unless a FOIA request advances "the citizens' right to
be informed about 'what their government is up to,' " Report-
ers Comm., 489 U.S. at 773, no relevant public interest is at
issue.

The Secretary relies on the declaration of FWS Director
Clark to show that disclosure of private landowners' names
and addresses would constitute an unwarranted invasion of
those individuals' privacy because birdwatchers and other
persons intensely interested in the location of pygmy owls will
unlawfully trespass upon the private lands. Clark described
an incident in Arizona in which the Audubon Society placed
the location of a pygmy owl sighting on its website and
telephone hotline: "On the same day the information was
placed on the Audubon hotlines several car loads of birders
were observed in the area of the reported location. The
following day birding groups included at least two out-of-state
vehicles." Clark noted that "property owners indicated dis-
pleasure at the number of people on and around their proper-
ties" during the Arizona incident. She added that, in light of

these prior experiences, "several landowners have already
discussed their fears of disclosure of the information...."
Clark also referred ambiguously to adverse effects from
birders on pygmy owls in Texas, but at oral argument the
Secretary disavowed any reliance on incidents in Texas as
evidence of trespass by birdwatchers.

NAHB contends that the district court erred in relying on
what it characterizes as Director Clark's speculative and
internally inconsistent declaration. Essentially, NAHB main-
tains that the single Arizona incident cited by Clark is
insufficient to support the speculation that birdwatchers
would not only seek out this information in order to locate the
owls but would then go to the location and unlawfully trespass
on private property. Although it is true that Clark noted
that landowners "indicated displeasure at the number of
people on and around their properties," it is also true that
Clark did not affirmatively state that illegal trespass was a
problem during the Arizona incident. And in the 1974 study
on which Clark based her conclusion regarding adverse ef-
fects on the Texas pygmy owl population, the author stated
that the birds were located on "privately owned land," and
thus "harassment may not be a problem." Further, the
Clark affidavit included as an exhibit an advertisement by a
private ranch proclaiming the presence of pygmy owls on its
property, but the Secretary offered no evidence that this
establishment has been overrun by lawless birdwatchers, as
feared by the Secretary and the district court.

The Secretary's evidentiary support for unlawful trespass,
therefore, is weak. One incident in which there is no claim
that unlawful trespass occurred hardly demonstrates a gener-
al problem, and there is nothing to suggest that property
owners cannot be protected against unlawful trespassers.
Even if property owners have expressed displeasure about
birdwatchers' presence on and around their properties, those
statements bear little weight in light of the landowners'
awareness that the owl information could be disclosed. Be-
fore allowing the Arizona Game and Fish Department ("State
agency") to survey on their land for pygmy owls, the property
owners sign confidentiality agreements providing that al-

though the information will be held confidential, it is subject
to public disclosure laws and court orders. As the Secretary
rightly notes, this court has stated that where "a substantial
probability that disclosure will cause an interference with
personal privacy" exists, "it matters not that there may be
two or three links in the causal chain." Horner, 879 F.2d at
878. Here, however, the problem is one of likelihood, not
causation, for the Secretary has failed to show that unlawful
trespass is likely to occur. Although we do not question
either the expertise of the FWS Director, who is familiar with
the "tenacity" of birdwatchers, or other indications that bird-
watching and other forms of ecotourism are growing substan-
tially in popularity, see Barton H. Thompson, Jr., People or
Prairie Chickens: The Uncertain Search for Optimal Biodi-
versity, 51 Stan. L. Rev. 1127, 1146 (1999), our conclusion
recognizes the paucity of evidence from which a reasonable
factfinder could find that disclosure of site information will
result in unlawful trespass on private property. See
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

NAHB contends, somewhat less persuasively, that "mini-
mal privacy interest" exists in the "unfocused information"
that would be disclosed in this case. It suggests that the data
is of dubious reliability for the purposes for which the Secre-
tary speculates it will be used, because it is too voluminous
and too old, and because it includes both active and inactive
sightings. The Secretary's privacy claim holds some merit,
however, because the address of a private landowner on
whose property an endangered species has been spotted is
not necessarily "unfocused information." Knowing the
square and lot numbers of a parcel of land is only a step from
being able to identify from state records the name of the
individual property owner. In the context of an individual
residence, the court has recognized that "the privacy interest
of an individual in avoiding the unlimited disclosure of his or
her name and address is significant.... In our society,
individuals generally have a large measure of control over the
disclosure of their own identities and whereabouts." Horner,
879 F.2d at 875 (citations omitted). Likewise, the Supreme
Court has evinced a reluctance in the FOIA context "to

disparage the privacy of the home, which is accorded special
consideration in our Constitution, laws, and traditions."
Dep't of Def. v. FLRA, 510 U.S. at 501 (citations omitted). As
in Horner, "disclosure of the information requested here
could interfere with the subjects' reasonable expectations of
undisturbed enjoyment in the solitude and seclusion of their
own homes." 879 F.2d at 876 (emphasis added). But Horner
is not entirely analogous. There the court was confronted
with the concern that former federal government employees
would be subject to " 'an unwanted barrage of mailings and
personal solicitations' " from entities targeting retired or dis-
abled persons. Id. at 876 (citation omitted). Here, the
private property owners are similarly concerned that disclo-
sure will result in unwanted contact from strangers. Insofar
as the pygmy owl is concerned, however, the property owners
already have divulged information about the sightings to the
State agency with the understanding that the information,
although confidential, might be subject to release under dis-
closure laws.

Viewing the asserted privacy interests as involving more
than minimal invasions of individual privacy, the court must
still address the question whether the public interest in
disclosure outweighs the individual privacy concerns. As
noted, our inquiry is limited to the question whether disclo-
sure will shed light on the "agency's performance of its
statutory duties." Bibles v. Or. Natural Desert Ass'n, 519
U.S. 355, 356 (1997) (per curiam) (citations omitted). We are
unpersuaded that knowledge of the Secretary's method is
either the same as disclosing site information or sufficient to
reveal what the Secretary "is up to" in designating habitats in
particular areas. If the information about owl sightings is
erroneous or otherwise deficient, or if the habitat designation
is unrelated to the sightings, the method described in the
1999 Final Rule cannot alone save the Secretary from reach-
ing a flawed result.

NAHB asserts several "public" interests in disclosure. The
first fails because the " 'purposes for which the request for
information is made' " have "no bearing on whether informa-
tion must be disclosed under FOIA." Bibles, 519 U.S. at 356

(quoting Dep't of Def. v. FLRA, 510 U.S. at 496). Thus,
NAHB contends that the pygmy owl data is "vital to NAHB's
effective participation" in the Interior Department's reconsid-
eration of the critical habitat designations. Viewed narrowly,
as merely enhancing NAHB's lobbying efforts, this purpose
does not relate to "the only relevant public interest in the
FOIA balancing analysis"--the extent to which disclosure
would shed light on the "agency's performance of its statutory
duties." Id.. at 355-56 (citations omitted). To the extent
NAHB maintains that property owners need to know whether
pygmy owls have been spotted on their property in order to
assess their potential liabilities under the Endangered Spe-
cies Act, the Secretary points out that "landowners are
informed when pygmy owls are located on their property."
Appellees' Br. at 25.

But NAHB also points to the public interest in examining
the FWS's use of the owl data in the 1999 critical habitat
designation and "on a day-to-day basis ... in a broad array of
other contexts." Appellant's Br. at 23. This interest in
exploring how the Secretary and the FWS are using the
information is distinct from NAHB's more limited interest in
itself using the information to advance its lobbying efforts.
The former relates to "citizens' right to be informed about
'what their government is up to,' " Reporters Comm., 489 U.S.
at 773; the latter does not. The Secretary's method set forth
in the 1999 Final Rule for designating habitats affords, as the
district court recognized, only a partial understanding of why
particular areas are designated as habitats. Because disclo-
sure of site-specific information about the pygmy owls could
contribute "to public understanding of the operations or
activities of the government," Dep't of Def. v. FLRA, 510 U.S.
at 495, it constitutes a cognizable public interest under FOIA.

Upon balancing the privacy interest against the public
interest, we conclude that the privacy interest is relatively
weak. As the court's reasoning in Horner indicates, disclo-
sure of site specific information is not "inherently and always
a significant threat" to privacy. 879 F.2d at 877. Rather, the
privacy threat depends on the individual characteristics that

the disclosure reveals and the consequences that are likely to
ensue. Here, to disclose that a pygmy owl has been sighted
on an individual's property does not disclose any information
about that individual, other than that the individual owns
property where an owl has been sighted. Although NAHB
has clarified on appeal that it no longer seeks the names of
individual property owners, such information can be obtained
from state records, and, accordingly, the clarification does not
affect our analysis. In Horner, by contrast, the requested
disclosure would have revealed not only names and addresses
but also the additional fact that the individuals on the list
were retired or disabled and received assistance from the
federal government. Id. at 874. Moreover, Horner was
concerned about the privacy of the home, whereas the Secre-
tary here sweeps more broadly to protect names and address-
es of commercial and residential property.

The other reasons put forth by the Secretary do not lend
weight to the asserted privacy interest. The Secretary has
established only the speculative potential of a privacy invasion
without any degree of likelihood. The access agreement
between private landowners and the State agency neither
significantly supports the privacy interest asserted nor bars
disclosure, as the agreement expressly provides that the
information is subject to public disclosure. Given the strong
public interest in knowing "what the government is up to," we
hold that the Secretary has failed to rebut the presumption
favoring disclosure, which is at its zenith under Exemption 6,
Wash. Post v. HHS, 690 F.2d at 261, by demonstrating that
disclosure would be "clearly unwarranted" so as to "tilt the
balance" against disclosure. Id. (citations omitted).

B.

The Secretary additionally relies on Exemptions 3, 4, and 5
to justify withholding the information NAHB requests. We
agree with the district court that these exemptions do not
preclude disclosure.

Exemption 3 covers data "specifically exempted from dis-
closure by statute ... provided that such statute (A) re-

quires that the matters be withheld from the public in such
a manner as to leave no discretion on the issue, or (B) es-
tablishes particular criteria for withholding or refers to par-
ticular types of matters to be withheld." 5 U.S.C.
s 552(b)(3). Consistent with congressional intent that ex-
emptions to disclosure be narrowly construed, the court has
identified nondisclosure statutes as those that are "the prod-
uct of congressional appreciation of the dangers inherent in
airing particular data" and that "incorporate[ ] a formula
whereby the administrator may determine precisely whether
the disclosure in any instance would pose the hazard that
Congress foresaw." Am. Jewish Cong. v. Kreps, 574 F.2d
624, 628-29 (D.C. Cir. 1978). Thus, "only explicit nondisclo-
sure statutes that evidence a congressional determination
that certain materials ought to be kept in confidence will be
sufficient to qualify under the exemption." Irons and Sears
v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979).

The Secretary's reliance on the Endangered Species Act as
a statute that establishes particular criteria for withholding
particular types of matters is misplaced. Looking first to
"the plain language of the statute," Ass'n of Retired R.R.
Workers, Inc. v. United States R.R. Ret. Bd., 830 F.2d 331,
334 (D.C. Cir. 1987), there is nothing in the Endangered
Species Act that refers to withholding information. The
Secretary points to s 1533(a)(3), which requires the Secre-
tary, to "the maximum extent prudent and determinable," to
"designate" by regulation "any habitat of such species which
is then considered to be critical habitat." The Secretary also
points to s 1533(b)(2), which provides that "[t]he Secretary
may exclude any area from critical habitat if [s]he determines
that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat...." But
nothing in this language refers to nondisclosure of informa-
tion.

Contending that s 1533 supplies criteria for determining
whether it would be "prudent" to include or withhold particu-
lar location information in the critical habitat designation, the
Secretary also points to legislative history that, in her view,
suggests that Congress contemplated permitting the Secre-

tary to withhold information in the critical habitat designa-
tion. The cited committee reports indicate that the Secretary
should act in "the best interest of the species" and note
approvingly the interpretation of "prudent" to refer to situa-
tions "where the designation of critical habitat would inform
those who would take a species illegally...." H.R. Rep. No.
95-1625, at 16 (1978), reprinted in 1978 U.S.C.C.A.N. 9453,
9466; H.R. Rep. No. 97-567, at 20 (1982), reprinted in 1982
U.S.C.C.A.N. 2807, 2820. However, for purposes of qualify-
ing as a withholding statute under Exemption 3, a statute
"must on its face exempt matters from disclosure. We must
find a congressional purpose for exempt matters from disclo-
sure in the actual words of the statute (or at least in the
legislative history of FOIA)--not in the legislative history of
the claimed withholding statute, nor in an agency's interpre-
tation of the statute." United States Dep't of Justice v.
Reporters Comm. for Freedom of the Press, 816 F.2d 730, 735
(D.C. Cir. 1987) (citation omitted) (emphasis added), modi-
fied, 831 F.2d 1124 (D.C. Cir. 1987), rev'd on other grounds,
489 U.S. 749 (1989). As the court stated in Reporters Com-
mittee, "legislative history will not avail if the language of the
statute itself does not explicitly deal with public disclosure,"
816 F.2d at 736, and the language of the Endangered Species
does not. Cf. Am. Jewish Cong., 574 F.2d at 631.

Exemption 4 protects "trade secrets and commercial or
financial information obtained from a person and privileged or
confidential." 5 U.S.C. s 552(b)(4). The terms in Exemption
4 are to be given their "ordinary meanings," Pub. Citizen
Health Research Group v. Food and Drug Admin., 704 F.2d
1280, 1290 (D.C. Cir. 1983) (citations omitted), and informa-
tion is "commercial" under this exemption if, "in and of itself,"
it serves a "commercial function" or is of a "commercial
nature." Am. Airlines, Inc. v. Nat'l Mediation Bd., 588 F.2d
863, 870 (2d Cir. 1978) (citing Getman v. NLRB, 450 F.2d 670,
673 (D.C. Cir. 1971)).

The Secretary contends that Exemption 4 applies because
the withheld information is confidential commercial informa-
tion. The Secretary points to a cooperative agreement be-
tween the FWS and the State agency, which initially collects

the site-specific information after obtaining permission from
the landowner and promising to hold the information in
confidence (subject to certain exceptions). The agreement
generally describes the programs and relationships between
the parties and also provides that FWS will supply, upon
application, "available financial assistance for the implementa-
tion of acceptable projects," and that the parties will "ex-
change biological and other data...." Because the State
agency provides access to its database in return for money,
the Secretary maintains that this relationship falls within the
ordinary meaning of a commercial transaction.

We are unpersuaded that owl-sighting information qualifies
as "commercial or financial" information simply because it
was provided pursuant to a government-to-government coop-
erative agreement. The FWS stated in an internal memoran-
dum (from the Regional Director in Albuquerque, New Mexi-
co) that the State agency is forbidden by statute to sell the
owl-sighting data, and it noted that the State agency would be
reluctant to do so even if permitted. Instead, the FWS
memorandum stated, the State agency provides federal agen-
cies with access to the data only as a condition to the receipt
under Section 6 of the Endangered Species Act, 16 U.S.C.
s 1535 (2000), of funds that it uses to assist in maintaining its
data-collection system. Such a quid-pro-quo exchange be-
tween governmental entities does not constitute a commercial
transaction in the ordinary sense. No "business information"
is involved, see Wash. Post v. HHS, 690 F.2d at 266, and the
owl-sighting data itself is commercial neither by its nature
(having been created by the government rather than in
connection with a commercial enterprise) nor in its function
(as there is no evidence that the parties who supplied the owl-
sighting information have a commercial interest at stake in its
disclosure), see Am. Airlines, 588 F.2d at 870; Bd. of Trade v.
Commodity Futures Trading Comm'n, 627 F.2d 392, 404
(D.C. Cir. 1980), abrogated on other grounds, United States
Dep't of State v. Wash. Post Co., 456 U.S. 595 (1982); Get-
man, 450 F.2d at 673.

Exemption 5 covers "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. s 552(b)(5). Otherwise known as the "deliberative
process privilege," Exemption 5 "shelters documents reflect-
ing advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions
and policies are formulated." Petroleum Info., 976 F.2d at
1433. Information is exempt only if it is both "predecisional"
and "deliberative." Id. at 1434. "A document is predecision-
al if it was 'prepared in order to assist an agency decision-
maker in arriving at his decision,' rather than to support a
decision already made. Material is deliberative if it 'reflects
the give-and-take of the consultative process.' " Id. (citations
omitted).

The site-specific information that NAHB seeks is predeci-
sional, because the State agency prepared it in part to assist
the FWS in making its determinations under the Endangered
Species Act. It is not, however, "deliberative." This court
has drawn a distinction between factual information, which
"generally must be disclosed," and "materials embodying
officials' opinions," which are "ordinarily exempt." Id. Al-
though the "fact/opinion distinction ... is not always disposi-
tive," id., it is here. The privilege is designed to protect
agency policy-oriented judgments and the processes by which
policies are formulated, rather than "purely factual, investiga-
tive matters." Id. at 1435 (citing EPA v. Mink, 410 U.S. 73,
89 (1973)). Nothing in the requested site-specific information
"reflect[s] an agency's preliminary positions or ruminations"
about a particular policy judgment. Id. Because the materi-
al cannot "reasonably be said to reveal an agency's or offi-
cial's mode of formulating or exercising policy-implicating
judgment, the deliberative process privilege is inapplicable."
Id.

For these reasons, we hold that Exemptions 3, 4, 5, and 6
do not permit withholding the requested site-specific informa-
tion. Accordingly, we reverse the grant of summary judg-
ment insofar as the district court ruled that Exemption 6
applied, and we remand the case with instructions to order
the Secretary to release the site-specific information while
withholding the individual property owners' names, which
NAHB no longer seeks.