United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 19, 2005 Decided June 17, 2005
No. 04-5204
JUDICIAL WATCH, INC.,
APPELLEE
v.
DEPARTMENT OF ENERGY, ET AL.,
APPELLANTS
Consolidated with
04-5205, 04-5206
Appeals from the United States District Court
for the District of Columbia
(No. 01cv00981)
(No. 01cv02545)
(No. 02cv01330)
Mark B. Stern, Attorney, U.S. Department of Justice, argued
the cause for appellants. With him on the briefs were Peter D.
Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S.
Attorney, Gregory G. Katsas, Deputy Assistant Attorney
General, and Michael S. Raab, Douglas Hallward-Driemeier,
and Lewis S. Yelin, Attorneys.
2
Sharon Buccino and James F. Peterson argued the cause for
appellees. With them on the brief were Jon Devine, Howard M.
Crystal, Eric R. Glitzenstein, and Paul J. Orfanedes.
Before: GINSBURG, Chief Judge, and TATEL and GARLAND,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Eight federal agencies appeal
from an order of the district court requiring them to search their
records for, and to give the plaintiffs, certain documents related
to the National Energy Policy Development Group (NEPDG).
The district court rejected the agencies’ claim that the
documents come within Exemption 5 of the Freedom of
Information Act (FOIA), 5 U.S.C. § 552(b)(5), because they
reflect the pre-decisional deliberations of the NEPDG. The
district court also ordered each agency to search for and to
disclose certain records created or maintained by agency
employees who were paid by the agency while they were
working for the NEPDG or another related task force.
We hold that, although the NEPDG was not itself an
“agency” for purposes of the FOIA, the agencies lawfully
withheld, pursuant to Exemption 5, documents bearing upon the
deliberative processes of the NEPDG. We also hold that the
records created or obtained by employees detailed from an
agency to the NEPDG are not “agency records” subject to
disclosure under the FOIA.
I. Background
In 2001 Judicial Watch and the Natural Resources Defense
Council, between them, sued the United States Departments of
Agriculture, Commerce, Energy, the Interior, Transportation,
3
and the Treasury, the Environmental Protection Agency, the
Federal Emergency Management Agency, and the Office of
Management and Budget (since dismissed), alleging the
defendant agencies violated the disclosure requirements of the
FOIA by withholding agency records related to the NEPDG,
which President George W. Bush had established earlier that
year for the purpose of developing a “national energy policy
designed to help the private sector, and government at all levels,
promote dependable, affordable, and environmentally sound
production and distribution of energy for the future.” Mem.
Establishing the NEPDG, Jan. 29, 2001. The plaintiffs sought
a declaration that the agencies’ failure to disclose the requested
documents was unlawful and an order requiring them to make
the documents available.
In its cross-motion for summary judgment, the Government
argued the documents in question were protected from
disclosure under Exemption 5 because they reflected the
deliberations of the NEPDG. The district court rejected that
argument and ordered the Government to release the requested
documents by June 1, 2004 “unless the agenc[ies] can
demonstrate how each communication is both deliberative and
predecisional of an agency’s own decision.” Judicial Watch,
Inc. v. Department of Energy, 310 F. Supp. 2d 271, 316 (2004).
The court also ruled that the DOE and the DOI had failed
adequately to search their records because they did not consider
in their search any documents created by or maintained by
agency employees while detailed to the NEPDG (or, with
respect to one employee, while he was serving as his agency’s
representative on another energy-related task force). Id. at
298–302. The court directed each Department to conduct a new
search and to disclose any non-exempt documents responsive to
the plaintiffs’ requests. Id. at 331. Upon the motion of the
Government, the district court later stayed its order pending the
outcome of this appeal.
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II. Analysis
We review the district court’s decision on summary
judgment de novo, which in a FOIA case means we must
“ascertain whether the agency has sustained its burden of
demonstrating that the documents requested are not ‘agency
records’ or are exempt from disclosure.” Assassination Archives
and Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). In
this case, the specific questions to be resolved are (1) whether
Exemption 5 permits the defendant agencies to withhold
documents pertaining not to their own deliberations but to those
of the NEPDG, and (2) whether the records of agency
employees who were detailed to the NEPDG are “agency
records” subject to disclosure under the FOIA. Before turning
to these issues, however, the court must address Judicial
Watch’s motion to dismiss this appeal on the ground that the
district court has not issued a final order. See 28 U.S.C. § 1291.
Judicial Watch contends the order of the district court is not
final because it does not actually require the agencies to disclose
any records; they are required only to conduct a fresh review of
their records and to raise such other objections, if any, as they
may then have. As the Government reads the order, on the other
hand, the agencies are required immediately (upon dissolution
of the stay pending appeal) to disclose certain documents with
respect to which the Government has no argument against
disclosure apart from the Exemption 5 argument already rejected
by the district court; therefore, the order is reviewable either as
a final order, pursuant to 28 U.S.C. § 1291, or as an
interlocutory injunctive order, pursuant 28 U.S.C. § 1292(a)(1).
In our view the order of the district court is not “final”
because it does not fully resolve all the issues before that court,
see Southeast Fed. Power Customers v. Harvey, 400 F.3d 1, 4
(D.C. Cir. 2005), but it is an appealable interlocutory order
5
insofar as it requires the disclosure of documents for which the
agencies claim no basis for non-disclosure beyond the argument
already rejected by the district court. That the agencies also
must conduct a new search does not mean they may defer
disclosure of the documents they have already located. The
order is therefore injunctive in nature and, as such, appealable
under § 1292(a)(1). See Gulf Oil Co. v. Dep’t of Energy, 663
F.2d 296, 306 n. 70 (D.C. Cir. 1981) (“Mandatory orders
affecting preliminary agency action have generally been held to
be appealable as injunctions under § 1292(a)(1)”); see also
Miller v. Bell, 661 F.2d 623, 625 (7th Cir. 1981) (“A disclosure
order in a FOIA suit is injunctive in nature”). We therefore
deny the motion to dismiss this appeal and proceed to the merits.
A. Exemption 5 and the Deliberative Process Privilege
The FOIA requires an “agency” to make “agency records”
available upon request unless it can show they come within one
of the nine exemptions in the Act, see 5 U.S.C. § 552(a)(3), (b);
Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 388 (D.C. Cir.
1996), which, in furtherance of the Congress’s goal of open
government, “have been consistently given a narrow compass.”
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989). The
only Exemption at issue here is No. 5, which authorizes the non-
disclosure of “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than
another agency in litigation with the agency.” That means the
Government may withhold a document if: (1) “its source [is] a
Government agency,” and (2) “it [falls] within the ambit of a
privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.” Dep’t of the
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,
8 (2001).
6
One of the privileges incorporated into Exemption 5 is the
common-law “privilege regarding the government’s deliberative
process.” Bureau of Nat’l Affairs v. Dep’t of Justice, 742 F.2d
1484, 1496 (D.C. Cir. 1984). Its 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.” Tax Analysts v. IRS, 117 F.3d 607, 617
(D.C. Cir. 1997). To come within the purpose of the privilege,
therefore, a document must be both “pre-decisional” and
“deliberative,” see In re Sealed Case, 121 F.3d 729, 737 (D.C.
Cir. 1997); and, by the terms of Exemption 5, it must also be an
“inter-agency” or an “intra-agency” record. See Klamath Water
Users, 532 U.S. at 9.
In this case the Government argues Exemption 5 and the
deliberative process privilege authorize the agencies to withhold
documents that would reveal the decision-making processes of
the NEPDG. The district court rejected that argument,
reasoning that because the NEPDG is not itself an “agency”
within the meaning of the FOIA, see 5 U.S.C. § 552(f)(1),
Exemption 5 does not protect its deliberations from disclosure.
In the district court’s view, then, the privilege would apply if the
NEPDG were informing the agencies’ decision-making
processes, but not if the agencies were informing the decision-
making processes of the NEPDG, as was in fact the case. See
310 F. Supp. 2d at 314–16.
We agree the NEPDG is not itself an “agency” subject to
the FOIA because its sole function is to advise and assist the
President. See Meyer v. Bush, 981 F.2d 1288, 1292 (D.C. Cir.
1993). The district court erred, however, in thinking that
Exemption 5 therefore does not protect the deliberations of the
NEPDG. Neither Exemption 5 nor the cases interpreting it
7
distinguish between the decision-making activities of an
“agency” subject to the FOIA and those of the President and his
staff, who are not subject to the FOIA. On the contrary, both the
Supreme Court and this circuit have expressly refused to draw
that distinction.
In EPA v. Mink, 410 U.S. 73, 85 (1973), the Supreme Court
deemed it “beyond question” that documents prepared by
agency officials to advise the President were within the coverage
of Exemption 5 because they were “‘intra-agency’ or ‘inter-
agency’ memoranda or ‘letters’ that were used in the
decisionmaking processes of the Executive Branch.” Similarly,
in Soucie v. David, 448 F.2d 1067, 1078 (1971), we held that
Exemption 5 shields “the decisional processes of the President
[and] other executive officers with policy-making functions.”
And in Bureau of National Affairs, 742 F.2d at 1496–97, we
held the Office of Management and Budget may properly
withhold as “predecisional, deliberative interagency memoranda
exempt from disclosure under 5 U.S.C. § 552(b)(5)” the EPA’s
budget recommendations, which the EPA submitted to the OMB
and which the OMB then used to make its own
recommendations to the President, because “the President, not
the EPA, makes the final decision concerning what budget
requests should be submitted to the Congress.”
The Executive Branch officials who play important roles in
the formulation of policy are not necessarily employed by an
“agency” within the meaning of the FOIA; an employee in a unit
of the Executive Office of the President engaged solely in
advising the President is an obvious example. See, e.g.,
Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136, 157 (1980) (“the President’s immediate staff or units
in the Executive Office whose sole function is to advise and
assist the President are not included within the term ‘agency’
under the FOIA”); Rushforth v. Council of Economic Advisors,
8
762 F.2d 1038, 1043 (D.C. Cir. 1985) (CEA not an “agency”
under FOIA); Meyer v. Bush, 981 F.2d at 1289 (Task Force on
Regulatory Relief, headed by then-Vice President Bush and
composed of cabinet members, not an “agency” for purposes of
FOIA). We are aware of no reason to believe — indeed, we
think it inconceivable — the Congress intended Exemption 5 to
protect the decision-making processes of the Executive Branch
when the decision is to be made by “agency” officials subject to
oversight by the President and not when the decision is to be
made by the President himself and those same agency officials
are acting in aid of his decision-making processes. As we
explained almost 25 years ago in Sierra Club v. Costle, 657 F.2d
298 (1981), the unitary structure of the Executive Branch is one
of its essential features:
The court recognizes the basic need of the President and his
White House staff to monitor the consistency of executive
agency regulations with Administration policy. He and his
White House advisors surely must be briefed fully and
frequently about rules in the making, and their contributions
to policymaking considered. The executive power under
our Constitution, after all, is not shared—it rests exclusively
with the President. The idea of a “plural executive,” or a
President with a council of state, was considered and
rejected by the Constitutional Convention. Instead the
Founders chose to risk the potential for tyranny inherent in
placing power in one person, in order to gain the advantages
of accountability fixed on a single source.
Id. at 405. See Christopher S. Yoo, Steven G. Calabresi, &
Anthony J. Colangelo, The Unitary Executive in the Modern
Era, 1945–2004, 90 IOWA L. REV. 601, 730 (2005) (concluding
“every President [during period studied] defended the
unitariness of the executive branch”).
9
Our interpretation of Exemption 5 is not inconsistent with
its textual limitation to “intra-agency” or “inter-agency”
communications, as the plaintiffs suggest. Rather, 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.”
Consider, for instance, Ryan v. Department of Justice, 617 F.2d
781 (1980):
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. Not 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, see In re Cheney, ___ F.3d ___, No. 02-5354, 2005
WL 1083346 (D.C. Cir. May 10, 2005), would be anomalous
indeed.
That the President, rather than an agency, initiated the
policy development process is of no moment; what matters is
whether a document will expose the pre-decisional and
deliberative processes of the Executive Branch. The district
court, which did not evaluate the disputed documents in those
terms, should do so upon remand, bearing in mind that the
deliberative process privilege does not protect purely factual
material contained in privileged documents if the disclosure of
such information would not reveal the nature of the
deliberations. See EPA v. Mink, 410 U.S. at 87–88.
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B. “Agency Records”
The FOIA requires disclosure only of “agency records,”
which are documents created or obtained by an agency and
under the agency’s control at the time the FOIA request is made.
See Burka v. Dep’t of Health & Human Servs., 87 F.3d 508, 515
(D.C. Cir. 1996). In this case the district court held that,
because the DOE employees detailed to the NEPDG remained
on the payroll of the DOE, the records they created or obtained
while on detail were “agency records” of the DOE and hence
subject to disclosure; the court therefore ordered the DOE to
search the documents of the former detailees and to disclose any
non-exempt portions thereof. See Judicial Watch, 310 F. Supp.
2d at 299.
Even if the detailees remained employees of the DOE, as
the district court concluded, our holding in Part II.A, above,
regarding Exemption 5 would still permit the DOE to withhold
documents the detailees created or obtained insofar as their
disclosure would reveal the deliberative processes of the
NEPDG. With respect to other documents the detailees created
or obtained while on detail, the question remains whether the
detailees were then DOE employees. The district court assumed
— and the Government does not disagree — that the DOE’s
duty to examine the records of the detailees and to disclose any
non-exempt portions thereof turns upon whether the detailees
were employees of the DOE or of the NEPDG when they
created or obtained the documents.*
*
If they were DOE employees, then the documents would have
been created in the legitimate conduct of their official duties at the
DOE, and it would be immaterial that the documents were and are
located at the Office of the Vice President and were never integrated
into the DOE’s records system. See Dep’t of Justice v. Tax Analysts,
492 U.S. at 145.
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The Government argues that the district court, in finding
that the detailees were employees of the DOE, relied too heavily
upon the detailees having been paid out of funds appropriated
for the use of the DOE. We agree. Although the district court
acknowledged that, during their detail, the employees worked
exclusively on NEPDG matters, were supervised by the Office
of the Vice President, and did not occupy an office at the DOE,
it appeared not to consider those factors in deciding whether the
detailees remained DOE employees; instead the district court
appeared to rely solely upon the agency having paid their
salaries. 310 F. Supp. 2d at 298–99. Cf. C.C. Eastern, Inc. v.
NLRB, 60 F.3d 855, 858–59 (D.C. Cir. 1995) (question whether
worker is employee covered by the National Labor Relations
Act or independent contractor outside the jurisdiction of the
NLRB is resolved by reference to common law of agency, which
in turn “requires an evaluation of all the circumstances
surrounding the relationship between the company and the
worker”); Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C. Cir.
1979) (holding “no one factor is determinative” of whether
individual is employee or independent contractor for purposes
of Title VII).
Agencies routinely detail employees to the White House for
a limited time or a specific task, and it is not for a court to
burden that practice when not under statutory compulsion. Cf.
Johnson v. Executive Office for U.S. Att’ys, 310 F.3d 771, 776
(D.C. Cir. 2002) (“FOIA ... is hardly an area in which the court
should attempt to micro manage the executive branch”); Sierra
Club v. Costle, 657 F.2d at 405; see also Cheney v. U.S. Dist.
Court, ___ U.S. ___, 124 S. Ct. 2576, 2581 (2004) (“special
considerations control when the Executive Branch’s interest in
maintaining the autonomy of its office and safeguarding the
confidentiality of its communications are implicated”). Seeing
that the records the plaintiffs seek would not be “agency
records” subject to the FOIA if the NEPDG had temporarily
12
hired the employees away from the DOE, we see no reason the
NEPDG should be made effectively subject to the FOIA because
it borrowed, rather than hired, some of its staff. Nor is there
evidence — nor indeed any claim by the plaintiffs — the DOE
used the detail procedure in order to circumvent the disclosure
requirements of the FOIA.
We reject the plaintiffs’ suggestion that there is something
to be gleaned from the statutory provision allocating the
responsibility for paying the salaries of the detailees. Section
112, 3 U.S.C. requires the office to which an employee has been
detailed to reimburse the detailing office for the detailees’ pay
insofar as the detail exceeds 180 days in a fiscal year. The
plaintiffs point out that some of the detailees from the DOE
worked for the NEPDG but were paid by the DOE for more than
180 days in FY 2001, from which they would have us infer the
detailees remained DOE employees. In our view, however, §
112 does not bear at all upon the question before us. At most
the plaintiffs’ argument suggests the DOE should have stopped
paying the detailees’ salaries, but that does not cast doubt upon
our conclusion that, given the surrounding circumstances, the
employees were not “agency employees” during the time they
worked for the NEPDG.
Because the circumstances amply support the DOE’s
assertion that the detailees were as a practical matter employees
of the NEPDG, and not of the agency, it follows that the records
those employees created or obtained while on detail were those
of the NEPDG, not those of the DOE, and hence not “agency
records” within the meaning of the FOIA. The district court
therefore erred in ordering the Government to search the records
of the detailees.
The records of Ronald Montagna, a DOI employee who
served as his agency’s representative on the White House Task
13
Force on Energy Project Streamlining, present a different issue.
The Streamlining Task Force was, according to an affidavit the
Government submitted in this case, established pursuant to an
executive order “to work with and monitor federal agencies’
efforts to expedite their review of permits or similar actions, as
necessary, to accelerate the completion of energy-related
projects, while maintaining safety, public health, and
environmental protections.”
The Government concedes that “at all times during his ...
assignment to the [Streamlining Task Force], each agency
representative remain[ed] an employee of his ... agency and
remain[ed] subject to the authorities and requirements” of that
agency. The Government argues, nonetheless, that documents
created or obtained by Montagna are not records of the DOI
because they are not in its possession but, rather, in the
possession of the Council on Environmental Quality. As the
district court correctly observed, however, possession is not the
proper test of whether a record is within an agency’s control.
See 310 F. Supp. 2d at 302 (quoting Ryan v. Dep’t of Justice,
617 F.2d at 785). It is undisputed that Montagna created or
obtained the documents “in the legitimate conduct of [his]
official duties” at the DOI, see Dep’t of Justice v. Tax Analysts,
492 U.S. at 145, and the Government does not suggest the DOI
lacks either authority over, or the ability to retrieve, the
documents. They are therefore within the DOI’s control for
purposes of the FOIA, and we affirm the order of the district
court insofar as it directed the DOI to examine and to disclose
the non-exempt portions of Montagna’s records.
III. Conclusion
We hold the defendant agencies may properly withhold
from disclosure, pursuant to Exemption 5, documents that would
reveal the deliberative processes of the NEPDG; and the DOE
14
need not search the records of DOE employees who were
detailed to the NEPDG, as those records are not “agency
records” within the meaning of the FOIA. The district court
correctly determined the DOI must disclose the non-exempt
documents of Ronald Montagna. The order of the district court
granting partial summary judgment to the plaintiffs is therefore
affirmed in part and reversed in part and the case is remanded to
the district court for further proceedings consistent with this
opinion.
So ordered.