Public Citizen, Inc. v. Office of Management & Budget

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2009 Decided June 19, 2009
Reissued March 11, 2010

No. 08-5004

PUBLIC CITIZEN, INC.,
APPELLANT

v.

OFFICE OF MANAGEMENT AND BUDGET,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 07cv00409)

Adina H. Rosenbaum argued the cause for appellant.
With her on the briefs was Brian Wolfman.

Alexander D. Shoaibi, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.

Before: ROGERS and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.
 2
Opinion concurring in part and dissenting in part filed by
Senior Circuit Judge WILLIAMS.

TATEL, Circuit Judge: Seeking to learn which federal
agencies submit materials to Congress without prior clearance
by the Office of Management and Budget, Public Citizen, a
non-profit public interest organization, filed a Freedom of
Information Act request for documents related to OMB’s
legislative and budgetary clearance policies. OMB released
redacted versions of fourteen documents, claiming that the
redacted portions are protected from disclosure under two of
FOIA’s nine statutory exemptions—Exemption 2 for
predominantly internal documents and Exemption 5 for
predecisional and deliberative documents. The district court
held that OMB was entitled to withhold the redacted portions
of the documents under Exemption 2 and granted summary
judgment to OMB. Reviewing de novo, we disagree. Having
examined the unredacted documents, we conclude that they
do not relate predominantly to OMB’s internal practices
and are thus unprotected by Exemption 2. And because
Exemption 5 requires that materials be both predecisional and
deliberative, it likewise provides no protection for the
majority of the documents’ content. We therefore reverse in
part and remand for the district court to order the release of
the documents with any redaction necessary to protect
portions that qualify as both predecisional and deliberative.

I.
The Office of Management and Budget (OMB), located
in the Executive Office of the President and subject to FOIA,
see 5 U.S.C. § 552(f)(1); Meyer v. Bush, 981 F.2d 1288, 1294
(D.C. Cir. 1993), helps the President prepare the federal
budget and ensures that legislation, testimony, reports, and
policies prepared by other federal agencies are consistent with
Administration policy. Two OMB circulars require federal
 3
agencies to clear materials with OMB before submitting them
to Congress: Circular No. A-11 covers budget-related
materials, and Circular No. A-19 covers proposed legislation,
reports to Congress, and congressional testimony. Pursuant to
Circular A-19, OMB reviews the submissions, solicits
comment from affected agencies, and gives feedback to the
proposing agency. Circular A-19 provides that agencies
“shall incorporate” OMB’s advice in transmitting their
legislative proposals to Congress and “shall not submit to
Congress any proposal that OMB has advised is in conflict
with the program of the President or has asked the agency to
reconsider as a result of the coordination process.” OFFICE OF
MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT,
OMB CIRCULAR NO. A-19, LEGISLATIVE COORDINATION AND
CLEARANCE ¶ 8(C) (1979) (“CIRCULAR NO. A-19”). Circular
A-19 applies to all executive agencies except those
“specifically required by law to transmit their legislative
proposals, reports, or testimony to the Congress without prior
clearance.” Id.

Unable to find a publicly available list of agencies that
transmit their materials to Congress without prior OMB
clearance—so-called “bypass agencies”—Public Citizen filed
a FOIA request with OMB. The request asked for:

(1) All records listing agencies that may directly
submit legislative proposals, reports, or testimony to
Congress without receiving OMB clearance; (2) [a]ll
records listing agencies that may directly submit
budget-related materials to Congress without
receiving OMB clearance; and (3) [a]ll records
explaining that agencies or an agency may directly
submit legislative or budget-related materials to
Congress without receiving OMB clearance or
 4
providing statutory authority for agencies or an
agency to directly submit legislative or budget-
related materials to Congress without receiving
OMB clearance.”

Adina H. Rosenbaum Decl. Ex. A at 1.

In response, OMB identified two documents but refused
to release them, claiming they were exempt from disclosure
under FOIA. Public Citizen appealed, challenging the
decision to withhold the two documents and the adequacy of
the search given how few responsive documents it
yielded. When OMB denied the appeal, Public Citizen
brought this action in the district court. After Public Citizen
filed its complaint, OMB, “out of an abundance of
caution,” Appellee’s Br. 5, conducted a second document
search, identifying twenty additional potentially responsive
documents for a total of twenty-two, including the fourteen
documents at issue in this appeal. Although OMB released
redacted versions of the fourteen documents, it continued to
withhold significant portions of them.

As described in OMB’s amended Vaughn index, see
Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973),
thirteen of the fourteen documents—document 1 and
documents 3 to 14—represent the current version and various
outdated versions of a memo to OMB staff from OMB’s
Assistant Director for Legislative Reference. James Jukes
Am. Decl. Attach. A at 1. The memo provides “a background
discussion of legal and statutory issues related to bypass
authorities, a list of the bypass agencies and a summary
description of the agencies’ budgetary and legislative ‘bypass’
authorities and a discussion of bypass authority and
Inspector[s] General[].” Id. The remaining document,
 5
document 2, entitled “Agencies Exempt from the Legislative
Clearance Process,” is a two-page excerpt from a document
called “OMB Roles and Responsibilities.” Id. OMB
describes all fourteen documents as summarizing “the
currently-held internal-OMB perspectives and views
regarding which Federal agencies have a basis—in statute or
in prior agency and OMB practice—for not submitting to
OMB, for interagency review, the drafts of their submissions
to Congress.” Jukes Am. Decl. ¶ 26. According to OMB,
then, the documents deal with two kinds of bypass: bypass
based “in statute” and bypass based “in prior agency and
OMB practice.” Id.

The portions of the documents OMB released describe
agencies with statutorily-based bypass authority. The
released portions include straightforward lists of such
agencies, as well as more detailed summaries of the statutory
basis for their bypass authority. To take just one example, the
Chemical Safety and Hazard Investigation Board appears as
one of eleven agency names on a list of “Agencies with
Statutorily-Based Budgetary and Legislative ‘Bypass’
Provisions.” Adina H. Rosenbaum Supp. Decl. Ex. E at 1. It
also appears in a section entitled “Summary Description of
Agencies’ Statutorily-Based Budgetary and Legislative
‘Bypass’ Provisions” and is described as follows:

2. Chemical Safety and Hazard Investigation Board
P.L. 101-549, Sec. 301 (amending Sec. 112(F)(6)(R)
of the Clean Air Act; 104 Stat. 2569; 42 USCA Sec.
7412(r)(6)(R)) provides that any budget estimate,
request, supplemental request, or information, any
legislative recommendation, or prepared testimony
submitted to the President or a Federal Agency shall
be concurrently transmitted to Congress. No Federal
 6
official or agency can require prior review of the
Board’s budgetary or legislative communications to
the Congress.

Id. at 3.

OMB moved for summary judgment as to the
undisclosed portions of the documents, claiming that the
information they contain is exempt from disclosure under
Exemption 2 (predominantly internal documents) and
Exemption 5 (predecisional and deliberative documents).
Public Citizen also moved for summary judgment, claiming
that neither exemption applies. After reviewing the
documents in camera, the district court granted summary
judgment to OMB, holding that the documents were exempt
from disclosure under Exemption 2. Pub. Citizen, Inc. v.
Office of Mgmt. & Budget, 520 F. Supp. 2d 149, 154–55
(D.D.C. 2007). It thus had no reason to address whether they
also qualified under Exemption 5. Id. at 156.

Public Citizen appeals, arguing that neither exemption
authorizes OMB to withhold the documents. Our review is de
novo, Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1111–
12 (D.C. Cir. 2007), and like the district court, we have
reviewed the documents in camera. Mindful of OMB’s right
to seek further review of our decision, we have redacted
portions of this opinion to protect the confidentiality of
information not yet disclosed, as has our dissenting colleague.

II.
Enacted “to pierce the veil of administrative secrecy and
to open agency action to the light of public scrutiny,” the
Freedom of Information Act reflects “a general philosophy of
full agency disclosure unless information is exempted under
clearly delineated statutory language,” Dep’t of Air Force v.
 7
Rose, 425 U.S. 352, 360–61 (1976) (internal quotation
marks omitted). The Supreme Court has emphasized that
“disclosure, not secrecy, is the dominant objective of the
Act.” Id. at 361. FOIA allows agencies to withhold only
those documents that fall under one of nine specific
exemptions, 5 U.S.C. § 552(b), which are construed narrowly
in keeping with FOIA’s presumption in favor of disclosure,
Rose, 425 U.S. at 361. The agency bears the burden of
showing that a claimed exemption applies. Loving v. Dep’t of
Def., 550 F.3d 32, 37 (D.C. Cir. 2008). We address each of
OMB’s claimed exemptions in turn.

Exemption 2
Exemption 2 allows agencies to withhold documents that
are “related solely to the internal personnel rules and practices
of an agency.” § 552(b)(2). Despite the statute’s reference to
documents related “solely” to internal rules and practices, we
have interpreted Exemption 2 to cover documents that are
“predominantly internal” and that meet one of two additional
requirements. Crooker v. Bureau of Alcohol, Tobacco &
Firearms, 670 F.2d 1051, 1074 (D.C. Cir. 1981) (en banc).
The first, known as the “low 2” exemption and not at issue
here, applies to predominantly internal materials that relate to
“trivial administrative matters of no genuine public interest.”
Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992)
(internal quotation marks omitted). The second, known as the
“high 2” exemption, id., and claimed by OMB in this case,
applies to predominantly internal materials if their disclosure
“significantly risks circumvention of agency regulations or
statutes,” Stolt-Nielsen Transp. Group Ltd. v. United States,
534 F.3d 728, 732 (D.C. Cir. 2008) (internal quotation marks
omitted).

We have confronted the “high 2” exemption in two key
cases. In Jordan v. United States Department of Justice, 591
 8
F.2d 753 (D.C. Cir. 1978), we ordered the release of
prosecutorial guidelines used by United States Attorneys,
finding that the guidelines fail to qualify as predominantly
internal. We explained that the guidelines are not “personnel”
rules and thus fall outside the statutory exemption for
documents “related solely to the internal personnel rules and
practices of an agency.” Id. at 763. We also emphasized that
the guidelines have a “definite impact on the public.” Id. In
Crooker v. Bureau of Alcohol, Tobacco & Firearms, which
we heard en banc, we retreated from Jordan’s reliance on
Exemption 2’s use of the term “personnel,” but nonetheless
affirmed Jordan’s holding that the guidelines were not
predominantly internal. 670 F.2d 1051, 1073–75 (D.C. Cir.
1981). We reasoned: “The guidelines on prosecutorial
discretion are instructions to agency personnel (e.g.,
prosecutors) on how to regulate members of the public.
Knowledge of those regulations may be as significant to
members of the public as is knowledge of statutory sentencing
provisions.” Id. at 1075. As to the document at issue in
Crooker itself—a Bureau of Alcohol, Tobacco and Firearms
manual describing law enforcement surveillance techniques—
we concluded that it qualified as predominantly internal
because it “is not concerned with regulating the behavior of
the public, but consists solely of instructions to agency
personnel” and does not “attempt to modify or regulate public
behavior only to observe it for illegal activity.” Id.

Here the district court held that the OMB documents are
predominantly internal because they “offer guidance to OMB
officials regarding other agencies’ ability to bypass
presidential review of those agencies’ budgetary and/or
legislative recommendations,” because the information they
contain “is plainly intended for internal use only,” and
because there is “no evidence that the documents have ever
been circulated to (or relied upon by) individuals outside of
 9
the Agency.” Pub. Citizen, 520 F. Supp. 2d at 155. Echoing
these reasons, OMB now argues that the documents are
predominantly internal because they have never been released
outside OMB, are used by OMB personnel in internal policy
discussions, and contain “‘a description of the views and
perspectives of OMB officials’ interpretations of the
views of certain agencies regarding legislative clearance
requirements,’” Appellee’s Br. 12 (quoting Jukes Am. Decl.
Attach. A at 1). OMB also insists that the documents are
predominantly internal because they concern other
government agencies, not the public at large, and because
they merely serve as briefing materials for OMB personnel
and thus seek to regulate no one.

We can easily dispense with several of these arguments.
To begin with, the mere fact that the documents were
intended for internal OMB use and have never been circulated
outside the agency cannot alone render them “predominantly
internal.” See Morley v. CIA, 508 F.3d 1108, 1125 (D.C. Cir.
2007) (“[Exemption 2] does not shield information on the sole
basis that it is designed for internal agency use.” (internal
quotation marks omitted)). Otherwise, agencies could
effectively avoid disclosure of any manner of information
simply by stamping it “for internal use only.” Indeed, OMB
itself seems to acknowledge as much, pointing out that the
district court relied on other factors beyond OMB’s treatment
of the documents as internal. Appellee’s Br. 22.

Nor is the documents’ use in internal discussions
conclusive. Agencies regularly refer to policies and
regulations as part of internal discussions without rendering
such policies (particularly those with significant external
impact) predominantly internal. For example, one could
easily imagine conversations within the U.S. Attorney’s office
in which agency personnel discuss the prosecutorial
 10
guidelines we found not predominantly internal in Jordan.
Such internal discussions would neither diminish the extent to
which the guidelines “regulate members of the public” nor
reduce the significance of “[k]nowledge of those regulations
. . . to members of the public,” Crooker, 670 F.2d at 1075.

OMB’s claim that the documents qualify for Exemption 2
because they concern other government agencies rather than
the public at large likewise fails. Exemption 2 covers
documents that are “related solely to the internal personnel
rules and practices of an agency.” § 552(b)(2) (emphasis
added); see also Vaughn, 523 F.2d at 1151 (Leventhal, J.,
concurring). For Exemption 2 to apply, then, the documents
would have to relate predominantly to the internal practices of
OMB itself, not of the government as a whole. In Vaughn v.
Rosen, we concluded that Civil Service Commission materials
dealing with other government agencies’ personnel practices
were not covered by Exemption 2. 523 F.2d at 1143. As
Judge Leventhal explained in his concurring opinion:

[T]he Federal Personnel Manual, issued by the
Commission for government-wide application, could
certainly not be withheld from the public in reliance
on exemption 2; its subject is federal personnel
policy, not internal personnel policy of an
agency. . . . A construction of (b)(2) exempting the
Civil Service Commission reports at issue in this
case would . . . totally remove the sphere of Civil
Service Commission operations from the public eye.

Id. at 1151 (Leventhal, J., concurring) (footnotes omitted). So
too here. If OMB documents concerning other government
agencies were categorically exempt, OMB, which is subject to
FOIA and whose primary function involves oversight and
 11
coordination of other government agencies, would be largely
exempt from FOIA.

This leaves OMB’s argument that like the surveillance
manual in Crooker, the documents at issue here “‘make no
attempt to modify or regulate public behavior[,] only to
observe it.’” Appellee’s Br. 17 (quoting Crooker, 670 F.2d at
1075) (alteration in original). Evaluating this argument
requires a more detailed understanding of the documents’
content, purpose, and use. Public Citizen, which of course
has never seen the documents, suspects that they establish
which agencies may bypass OMB despite the lack of clear
statutory authority to do so and in this way regulate other
agencies. OMB disputes this characterization, stating that the
documents “do not govern the actions of either OMB
personnel or other federal agencies,” Appellee’s Br. 13, and
emphasizing that OMB cannot override Circular A-19’s
determination that only agencies with statutory authority are
allowed to bypass the clearance process, Oral Arg. at 17:00–
17:20. But as Public Citizen points out, the titles of the
documents suggest just the opposite. For example, document
2, entitled “Agencies Exempt from the Legislative Clearance
Process,” lists those agencies having statutory bypass
authority but also includes a separate block of text, redacted
by OMB, suggesting that the list of agencies considered
“exempt” from the clearance process includes something
more than just those with statutory authority. Indeed, our in
camera review demonstrates that this document in fact covers
statutorily-based bypass agencies as well as customary bypass
agencies, both under the overall heading of agencies
“exempt” from the clearance process. Similarly, a section of
document 1 broadly entitled “Bypass Agencies” includes both
statutory and customary bypass agencies, implying that OMB
considers both to be “Bypass Agencies.” Moreover,
document 1 expressly states that “[f]orty-four Federal
 12
agencies currently have some form of legislative and/or
budgetary ‘bypass.’ [These include] agencies with . . . non-
statutory (i.e., ‘informal’) legislative ‘bypasses.’” Mem. from
Jim Jukes to OMB Policy Officers and DADs 1 (Feb. 20,
2001) (“2001 Jukes Mem.”). On its face, then, document 1
appears to state OMB’s policy regarding which agencies
“currently have” an informal bypass. And OMB itself
describes the documents as containing its “perspectives and
views regarding which Federal agencies have a basis—in
statute or in prior agency and OMB practice”—for bypassing
the clearance process. Jukes Am. Decl. ¶ 26 (emphasis
added). OMB may well be correct that it lacks authority to
grant a bypass, but by treating some agencies as if they
“currently have” an informal bypass, it would seem to be
implementing a policy of granting de facto bypasses.

But even if, as OMB insists, it never uses the documents
to determine whether to enforce the clearance requirements
for a particular agency, the documents do identify those
agencies OMB treats differently in its clearance process.
Indeed, much like the prosecutorial guidelines found subject
to disclosure in Jordan, the documents determine OMB’s
interaction with outsiders—an interaction having real-world
effects on the behavior of both bypass and non-bypass
agencies. For example, as part of the Circular A-19 clearance
process, OMB refers proposed legislation to affected agencies
for comment. When referring such materials to a bypass
agency, however, OMB, acting pursuant to its “longstanding
practice,” follows a different procedure: “In general, an OMB
referral is not made to a ‘bypass’ agency unless the agency
agrees to refrain from forwarding to Congress OMB-referred
material or its response to an OMB referral.” 2001 Jukes
Mem. 1. The documents thus list those agencies required by
OMB to act differently than most federal agencies, either by
agreeing not to forward OMB materials to Congress or by
 13
commenting only informally or not at all on submissions from
other agencies. In addition to depriving listed bypass
agencies of a full opportunity to submit formal comments, this
policy affects the feedback that non-bypass agencies receive
and must incorporate into their congressional submissions.
The list of bypass agencies thus stands in marked contrast to
the publicly available policy reflected in Circulars A-11 and
A-19. As we have repeatedly explained, FOIA provides no
protection for such “secret law” developed and implemented
by an agency. See, e.g., Nat’l Treasury Employees Union v.
U.S. Customs Serv., 802 F.2d 525, 531 (D.C. Cir. 1986).

According to the dissent, the documents deal only with
peripheral activity as opposed to agencies’ primary conduct.
Specifically, the dissent views the referral process as mere
“bureaucratic information exchange,” Dissenting Op. at 9, but
Circular A-19 makes plain that this process is central to the
clearance function. One of the main purposes of the clearance
process is to “assure appropriate consideration of the views of
all affected agencies.” CIRCULAR NO. A-19 ¶ 3. Upon
receiving a submission from a non-bypass agency, OMB
“undertake[s] the necessary coordination with other interested
agencies of an agency’s proposed legislation or report,”
including requesting “other agency views within specified
time limits.” Id. ¶ 8(a)(1). Referral of an agency submission
to other agencies for comment thus represents a key part of
the legislative clearance process. As such, the referral policy
does more than merely “influence” the behavior of other
agencies. It limits or even eliminates the role bypass agencies
play in clearing proposals submitted by non-bypass agencies,
even when such proposals affect the bypass agencies’ own
functions. This policy in turn determines the scope of advice
OMB provides to non-bypass agencies, advice that those
agencies must incorporate into their congressional
submissions.
 14

The dissent also rejects the view that the documents in
fact determine which agencies may bypass the clearance
process, describing their “real purpose” as limited to the inter-
agency referral process. Dissenting Op. at 3. As noted above,
however, on their face the documents strongly suggest that
they do in fact represent the list of agencies allowed to bypass
the process. To be sure, Assistant Director Jukes asserted that
the documents do not represent OMB’s “official policy” on
which agencies may bypass, Jukes Am. Decl. ¶ 28, but an
agency may not avoid FOIA by deeming its de facto policy
“unofficial.” Moreover, Jukes himself describes the
documents as summarizing OMB’s views “regarding which
Federal agencies have a basis—in statute or in prior agency
and OMB practice—for not submitting [materials for OMB
clearance].” Id. ¶ 26 (emphasis added). Indeed, the very
existence of a policy that treats bypass agencies differently
with respect to referral of submissions for interagency
comment indicates that the documents in fact contain OMB’s
policy of acquiescing in the listed agencies’ asserted bypass
authority. If the listed agencies had no bypass authority,
OMB would have no reason to avoid sharing other agency
proposals with them.

The dissent says that “we have no basis for inferring” that
OMB has authority to subject informal bypass agencies to the
clearance process. Dissenting Op. at 5. The documents
themselves indicate otherwise. For example, document 1
notes that in some cases OMB “has made no effort in recent
memory to subject the [agency] to the requirements of
Circular A-19,” 2001 Jukes Mem. Attach. at 19. This
strongly suggests that there are steps OMB can take to subject
agencies to the clearance process. Moreover, at oral argument
OMB counsel repeatedly insisted that OMB can require
agencies to submit proposed legislation for clearance. For
 15
example, asked whether OMB “even with respect to these
agencies not statutorily exempt will for particular pieces of
legislation exercise its review function,” counsel responded,
“[i]f it chooses that it should at a particular time, it will.”
Oral Arg. at 35:35–36:00. Counsel later reiterated that as to
proposed legislation, OMB “always [has] the power as
granted by the Executive Order, by the Circular, by the memo
of February 15, 2001, to say ‘we want to look at this,’ and [it]
can always do that.” Id. at 37:24–37:33.

Returning, then, to our analysis, we note that our
conclusion that the documents are not predominantly internal
applies to the documents in their entirety. Neither the
unelaborated list of agency names nor the summaries
describing the basis of each agency’s informal bypass
authority relate predominantly to OMB’s internal practices.
Where, as here, documents are used to affect the behavior of
other agencies, knowing the salient characteristics of agencies
that receive differential treatment is as significant to those
outside OMB as knowing the agencies’ identities. For
example, portions of the summaries explain that a particular
agency does not in fact submit materials for clearance or that
OMB has not attempted to subject a particular agency to the
clearance process. Such statements implicate the same
concerns as the list of agency names; by explaining OMB’s
policy of treating certain agencies differently, they have
significant external effects on the behavior of other agencies
and are thus not related predominantly to OMB’s internal
practices.

As applied to the summary descriptions, OMB’s
argument that the documents are predominantly internal
because they embody OMB’s “interpretations of the
views of certain agencies regarding legislative clearance
requirements,” Appellee’s Br. 12, also fails. To begin with,
 16
the summaries hardly seem interpretive: they consist
primarily of quotations from agencies’ governing statutes and
statements that a given agency interprets a particular statute as
authorizing bypass, that it lacks a statutory bypass, or that it
declines to submit materials for clearance. Indeed, only one
sentence in any of the summaries even hints at an OMB view
or perspective: one agency’s de facto bypass, it says, “could
be” based on a particular section of the agency’s governing
statute. 2001 Jukes Mem. Attach. at 19. But even if such
statements represent OMB’s interpretations of other agencies’
views, they nonetheless describe possible bases for bypass
authority in which OMB acquiesces. As such, they are
themselves significant in explaining the different
requirements imposed on certain agencies.

Finally, the documents at issue here lie at the core of
what FOIA seeks to expose to public scrutiny. They explain
how a powerful agency performing a central role in the
functioning of the federal government carries out its
responsibilities and interacts with other government agencies.
As we have explained, “the strong policy of the FOIA [is] that
the public is entitled to know what its government is doing
and why.” Coastal States Gas Corp. v. Dep’t of Energy, 617
F.2d 854, 868 (D.C. Cir. 1980). Where, as here, agency
documents have significant external effects on other
government agencies, they are not “predominantly internal”
within the meaning of Exemption 2.

Because the documents Public Citizen seeks are not
related predominantly to OMB’s internal practices, we have
no need to decide whether they meet the high 2 exemption’s
second element—that their release would significantly risk
circumvention of the law. See Crooker, 670 F.2d at 1075
(reiterating that the prosecutorial guidelines in Jordan would
be subject to disclosure because “even assuming that the
 17
guidelines . . . may aid some individuals in evading the law,
[they] are not ‘predominantly internal’”). We thus turn to
OMB’s alternative claim that the documents are covered by
Exemption 5.

Exemption 5
Exemption 5 allows agencies to withhold documents that
would be protected from disclosure in litigation under one of
the recognized evidentiary or discovery privileges, such as the
attorney-client privilege. Coastal States, 617 F.2d at 862.
Here the privilege at stake is the deliberative process
privilege, which

serves to assure that subordinates within an agency
will feel free to provide the decisionmaker with their
uninhibited opinions and recommendations without
fear of later being subject to public ridicule or
criticism; to protect against premature disclosure of
proposed policies before they have been finally
formulated or adopted; and to protect against
confusing the issues and misleading the public by
dissemination of documents suggesting reasons and
rationales for a course of action which were not in
fact the ultimate reasons for the agency’s action.

Id. at 866. Thus, as embodied in Exemption 5, the privilege
protects documents that are both “predecisional” and
“deliberative.” Id. “We deem a document predecisional if it
was generated before the adoption of an agency policy and
deliberative if it reflects the give-and-take of the consultative
process.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151
(D.C. Cir. 2006) (internal quotation marks omitted). OMB
claims that the documents at issue here are all predecisional
and deliberative and thus covered by Exemption 5.
 18
We begin with OMB’s response to Public Citizen’s
argument that even if the documents were at one time
predecisional and deliberative, OMB’s informal adoption and
application of the documents as its “working law” render
them final and thus subject to disclosure. See Coastal States,
617 F.2d at 866 (explaining that “even if the document is pre-
decisional at the time it is prepared, it can lose that status if it
is adopted, formally or informally, as the agency position on
an issue”). OMB claims that because of its “unique role and
position in the Executive Branch” as advisor to the President,
Appellee’s Br. 45, its documents are “‘by their nature’”
predecisional and deliberative and cannot constitute
“‘working law,’” id. at 44 (quoting United States v. Philip
Morris USA Inc., 218 F.R.D. 312, 321 (D.D.C. 2003)).
OMB’s advisory role may well mean that some—indeed,
even many—documents it produces are predecisional in
nature, but the blanket application of Exemption 5 it seeks
goes too far: carried to its logical conclusion, the argument
would exempt virtually all OMB documents from disclosure.
We have no doubt that OMB frequently produces documents
that contain recommendations, but such documents are hardly
contagious, spreading their predecisional and deliberative
nature to all other documents in their vicinity. Documents
qualify as predecisional and deliberative only if they “reflect[]
advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental decisions
and policies are formulated, [or] the personal opinions of the
writer prior to the agency’s adoption of a policy.” Taxation
With Representation Fund v. IRS, 646 F.2d 666, 677 (D.C.
Cir. 1981). To the extent the documents at issue in this case
neither make recommendations for policy change nor reflect
internal deliberations on the advisability of any particular
course of action, they are not predecisional and deliberative
despite having been produced by an agency that generally has
an advisory role. And although it might well be difficult to
 19
determine at what point OMB’s recommendations about the
suitability of a particular piece of proposed legislation have
been sufficiently adopted to qualify as “working law,” we
face no such difficulty here. Documents reflecting OMB’s
formal or informal policy on how it carries out its
responsibilities fit comfortably within the working law
framework.

OMB argues that the documents Public Citizen seeks are
in fact predecisional because OMB “consider[s]” the
documents “during the inherently deliberative process of
legislative clearance.” Appellee’s Br. 41. But we agree with
Public Citizen that an agency’s application of a policy to
guide further decision-making does not render the policy itself
predecisional. For example, in Tax Analysts v. IRS, we held
that IRS documents containing legal advice to field offices
were not predecisional because even though they “may
precede the field office’s decision in a particular taxpayer’s
case, they do not precede the decision regarding the agency’s
legal position.” 117 F.3d 607, 617 (D.C. Cir. 1997).
Similarly, in Jordan, where we held that the prosecutorial
guidelines were neither predecisional nor deliberative, we
reasoned that even though the guidelines “may not be
absolutely binding on each Assistant,” they “do express the
settled and established policy of the U.S. Attorney’s Office.”
591 F.2d at 774. Here the documents list the agencies to
which OMB refers materials for formal comment only
after obtaining assurances of confidentiality. Absent such
assurances, OMB may well decide on a case-by-case basis
whether to request a bypass agency’s informal comments on a
particular piece of proposed legislation. Such subsequent
decisions, however, do not undermine the finality of the
existing policy, which singles out the agency for differential
treatment in the first place.
 20
Urging a second basis for classifying the documents as
predecisional, OMB argues that they “serve as a starting point
for discussions within OMB concerning possible changes to
OMB’s practices.” Appellee’s Br. 35. This argument gets
OMB only so far. As Public Citizen correctly notes,
Appellant’s Reply Br. 18, whenever an agency seeks to
change a policy, it logically starts by discussing the existing
policy, and such discussions hardly render documents
explaining the existing policy predecisional. Otherwise it
would be hard to imagine any government policy document
that would be sufficiently final to qualify as non-predecisional
and thus subject to disclosure under FOIA. In any event,
Exemption 5 protects only documents that are both
predecisional and deliberative. As we explained in Jordan,
“it is not enough that a communication precede the adoption
of an agency policy.” 591 F.2d at 774. To qualify under
Exemption 5, a document must also “‘be a direct part of the
deliberative process in that it makes recommendations or
expresses opinions on legal or policy matters.’” Id. (quoting
Vaughn, 523 F.2d at 1143–44). A document that does
nothing more than explain an existing policy cannot be
considered deliberative. E.g., In re Sealed Case, 121 F.3d
729, 737 (D.C. Cir. 1997). Nor may an agency avail itself of
Exemption 5 to shield existing policy from disclosure simply
by describing the policy in a document that as a whole is
predecisional, such as a memo written in contemplation of a
change in that very policy. Only those portions of a
predecisional document that reflect the give and take of the
deliberative process may be withheld. Access Reports v.
Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991)
(explaining the difference between the predecisional
requirement and the deliberative requirement and noting that
agencies may withhold only those portions of a predecisional
document that are also deliberative). Here the documents list
agencies that “currently have” formal or informal bypass
 21
authority. Significantly for our purposes, the documents
nowhere consider whether OMB should cease acquiescing in
a particular agency’s practice of bypassing OMB. Indeed,
document 2 merely lists agency names—it offers no
commentary whatsoever. Similarly, portions of documents 1
and 3 to 14 list the agencies and give the reasons for their
inclusion on the list, and as we’ve explained, the reasons
behind existing policy—such as OMB’s policy of treating
certain agencies differently—are not deliberative. To the
extent documents 1 and 3 to 14 go beyond describing and
explaining the existing policy and current state of affairs,
OMB may withhold only those portions that provide candid
or evaluative commentary.

Moreover, agencies must disclose those portions of
predecisional and deliberative documents that contain factual
information that does not “inevitably reveal the government’s
deliberations.” In re Sealed Case, 121 F.3d at 737. The list
of bypass agencies consists of just such factual information,
i.e., the names of agencies that, in fact, generally decline to
submit materials for OMB clearance. While OMB may be
right that such a list does not establish the “fact” that an
agency actually possesses undisputed legal authority to
bypass OMB, it does represent a “fact” about the agency’s
behavior—specifically, that the agency does or does not
submit materials to OMB. As OMB counsel explained, some
agencies that had initially bypassed OMB without statutory
authority later asked OMB to review their submissions, and as
a result “they’ve been removed from the list.” Oral Arg. at
42:20–42:38. Exemption 5 provides no protection for such
factual information.

Because Exemption 5 covers only those portions of the
documents that are both predecisional and deliberative, OMB
has failed to meet its burden of demonstrating that Exemption
 22
5 covers the documents in their entirety. Accordingly, OMB
must release all responsive portions of document 2, as well as
all portions of documents 1 and 3 to 14 that are not both
predecisional and deliberative. Although the district court
determined that all segregable portions of the documents had
been released, Pub. Citizen, Inc., 520 F. Supp. 2d at 157–58,
it evaluated the documents only under Exemption 2, which we
have concluded does not apply, see supra at 13. The
Exemption 5 segregability analysis requires a different
inquiry, one that focuses on the predecisional and deliberative
nature of the documents’ content. As to documents 1 and 3 to
14, then, we think it best for the district court to conduct this
inquiry in the first instance.

III.
For the foregoing reasons, we reverse in part and remand
for the district court to order the release of document 2; to
determine consistent with this opinion whether certain limited
portions of documents 1 and 3 to 14 are predecisional and
sufficiently reflect the give and take of the deliberative
process to warrant continued redaction; and to order the
release of those documents with appropriate redaction if
necessary.

So ordered.
 WILLIAMS, Senior Circuit Judge, concurring in part and
dissenting in part: This case concerns fourteen documents
relating to the role of the Office of Management and Budget
(“OMB”) in clearing executive (and “independent”) agencies’
legislative and budget proposals to Congress. The appellant,
Public Citizen, contends that the Freedom of Information Act
(“FOIA”) requires OMB to disclose these documents in their
entirety. OMB argues that the undisclosed portions of the
documents are exempt from disclosure under FOIA
Exemptions 2 and 5. The district court granted summary
judgment to OMB on the basis of Exemption 2. The majority
today finds Exemption 2 inapplicable, and remands for further
consideration of Exemption 5. I believe that OMB established
the first of two requirements for withholding under Exemption
2, and that the case should be remanded for clarification as to
the second requirement. I concur, however, in the court’s
disposition of OMB’s assertion of Exemption 5.

* * *

Exemption 2 covers documents that are “related solely to
the internal personnel rules and practices of an agency.” 5
U.S.C. § 552(b)(2). We have long interpreted the exemption
more broadly than its language immediately suggests. As
currently understood, the exemption’s threshold requirement
is that the documents must be “used for predominantly
internal purposes.” Schiller v. NLRB, 964 F.2d 1205, 1207
(D.C. Cir. 1992) (quoting Crooker v. Bureau of Alcohol,
Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C. Cir. 1981)).
Documents satisfying that criterion may be withheld if they
“deal with trivial administrative matters” (the “low 2”
exemption) or if “disclosure . . . would risk circumvention of
agency statutes and regulations” (the “high 2” exemption). Id.
As the documents clearly deal with non-trivial matters, the
“high 2” exemption is the relevant one. I will discuss the two
 2

requirements—predominant internality and circumvention of
law—in turn.

Predominant internality. Whether these documents are
predominantly internal depends on their content and function.
Public Citizen understandably inferred from the titles of the
documents—for example, “Agencies Exempt from the
Legislative Clearance Process”—that they contain OMB’s
policies regarding which agencies may bypass the clearance
process by which OMB reviews agency submissions to
Congress. In addition, the documents were supplied by OMB
in response to a request for records “listing agencies that may”
directly submit legislative and budget proposals to Congress
without OMB clearance. Plaintiff’s inference, nonetheless, is
a bit of an oversimplification.

First, the Assistant Director for Legislative Reference of
the OMB stated flatly in his affidavit that the documents “do
not represent or set forth OMB’s ‘official position’ (so to
speak) regarding which agencies may, or may not, submit
legislative materials directly to Congress.” Jukes Am. Decl.
at 14. See also Office of Mgmt. & Budget, Executive Office
of the President, OMB Circular No. A-19, Legislative
Coordination and Clearance (1979), posted at
http://www.whitehouse.gov/omb/circulars/a019/a019.html
(“Coverage. All executive branch agencies (as defined in
section 5b) are subject to the provisions of this Circular,
except those agencies that are specifically required by law to
transmit their legislative proposals, reports, or testimony to
the Congress without prior clearance.”).

Second, in camera examination shows that insofar as the
documents guide the conduct of OMB personnel at all, they
do so in relation not to the clearance process but to another
 3

aspect of OMB’s relation to agencies. The documents contain
no instructions to OMB personnel to allow some agencies but
not others to bypass the clearance process. Documents 1 and
3-14, which are memos from the OMB’s Assistant Director
for Legislative Clearance to OMB staff, do contain other
instructions making clear the documents’ real purpose.
Specifically, the memos instruct the OMB staff not to
automatically refer material to “bypass” agencies, so as to
avoid letting the agencies forward such material to Congress.
See, e.g., Jim Jukes, Memorandum for OMB Policy Officers
and DADs [acronym unexplained] (Feb. 20, 2001) (“[The
Legislative Reference Division’s] longstanding practice is to
determine, on a case-by-case basis, whether or not to refer
material for review to a ‘bypass’ agency. . . . In general, an
OMB referral is not made to a ‘bypass’ agency unless the
agency agrees to refrain from forwarding to Congress OMB-
referred material or its response to an OMB referral.”) In
other words, to the extent that the documents had a function
beyond explaining what bypasses are and which agencies
have asserted a right to bypass, it was to instruct employees
on how those agencies should be treated in the referral
process.

The majority opinion hints that the memos contain a
policy concerning which agencies may bypass the clearance
process. It relies on Document 1’s statement that “[f]orty four
Federal agencies currently have some form of . . . ‘bypass.’”
Maj. Op. at 12 (quoting Jim Jukes, Memorandum for OMB
Policy Officers and DADs (Feb. 20, 2001)). In context,
though, it is clear that this is a statement of fact concerning
which agencies have asserted bypass authority, not an
endorsement of their claims or even a statement of OMB
assessment of or response to those claims. See Bypass
Agencies 5 (Feb. 2001) (explaining that informal bypasses are
 4

asserted by several agencies without explicit authority, and
that although Circular A-19 does cover these agencies they
“generally do not comply with its provisions.”).

The panel’s next argument on this point similarly
confuses a factual statement with a policy. It relies on the
Assistant Director’s statement that the documents “seek to
summarize the currently-held internal-OMB perspectives and
views regarding which Federal agencies have a basis—in
statute or in prior agency and OMB practice—for not
submitting [materials for OMB clearance].” Jukes Am. Decl.
at 13. All this means, however, is that the documents list all
the agencies which may view themselves as exempt from the
clearance process, whether this is because of a statute, the
agency’s own prior practice, or some combination of the
agency’s practice and OMB’s response to it. Consider, for
example, Document 1’s treatment of the Federal Trade
Commission “FTC”: “The FTC has no statutory legislative
bypass but acts as if it does . . . . OMB has made no effort in
recent memory to subject the FTC to the requirements of
Circular A-19.” Bypass Agencies 19 (Feb. 2001). The
document explains why the FTC might have a “basis” in its
own practice, as well as OMB’s recent actions, to think of
itself as a bypass agency. It does not, however, endorse the
FTC’s claim to bypass authority or adopt a policy of not
attempting to get the FTC to comply with Circular A-19.

The panel further argues that if the documents really just
recorded past OMB practice—rather than setting out a policy
of OMB acquiescence in these agencies’ behavior—OMB
would not worry about sharing information with them. As my
colleagues put it, “If the listed agencies had no bypass
authority, OMB would have no reason to avoid sharing other
agency proposals with them.” Maj. Op. at 14. Again the
 5

analysis confuses a pattern of successful agency bypass with
OMB policy. Even if OMB made every possible effort to
subject the FTC or some other informal bypass agency to
Circular A-19, it would still sensibly worry about sharing
information with that agency—unless and until its efforts
proved successful. The panel’s theory simply assumes that
OMB has enforcement power; but we have no basis for
inferring such power’s existence.

In support of its view the panel invokes a couple of
passages from oral argument. I hesitate to draw serious
conclusions from a muddled colloquy in which the judges
more than once declared that they could not understand
counsel’s answers. Oral Arg. at 35:30-35:35; id at 36:05-
36:15. As the panel’s conviction that the materials disclose
“secret law” turns on an understanding of OMB enforcement
power, we should at the very least remand for a determination
that such power exists rather than rely on inferences from
highly ambiguous statements at oral argument by a counsel to
whom our questions appeared extremely unclear.

In any event, counsel’s answers fall far short of a clear
claim to effective power to insist that all agencies submit
proposals for OMB review before submission to Congress.
The statement of OMB counsel at oral argument that OMB
“always [has] the power as granted by the Executive Order, by
the Circular, by the memo of February 15, 2001 to say ‘we
want to look at this,’ and [it] can always do that,” see Maj.
Op. at 15 (quoting Oral Arg. at 37:24-37:33), does nothing to
establish enforcement power. Quite literally, counsel
observed that OMB had the power to “say” to agencies that
they should turn over the specified type of document. It
brings to mind Hotspur’s famous rejoinder to Glendower:
 6

Glendower: I can call spirits from the vasty deep.

Hotspur: Why, so can I, or so can any man; But will they
come when you do call for them?

At most it suggests that OMB has a legal right to require
certain agencies to participate in the clearance process, quite
distinct from an effective enforcement power.

The majority also points to an exchange in which a judge
asked counsel whether OMB “even with respect to those
agencies not statutorily exempt will for particular pieces of
legislation exercise its review function,” and counsel
responded, “if it chooses that it should at a particular time, it
will.” Maj. Op. at 15 (quoting Oral Arg. at 35:35-36:00).
Counsel was primarily asserting that OMB can’t make “any
decisions about agencies and their ability to go around OMB,”
Oral Arg. at 34:30-34:38. But it does, he argued, have some
discretion with regard to specific legislative proposals: “It can
make a decision, for example, when a [proposed?] statute
comes to it, that this particular statute does not need to go
through a review process.” Id. at 34:59-35:05. Counsel’s
answer to the question, then, merely reaffirms his point that
OMB has discretion over “particular pieces of legislation.” It
does not establish that agencies would comply, and it certainly
does not establish that pieces of legislation would “come to
[OMB]” before going to Congress. Indeed, elsewhere counsel
noted that OMB frequently does not even know about
agencies’ legislative proposals until they are introduced in
Congress. Oral Arg. at 36:21-36:33. In short, the OMB’s
own description of the documents is fair: the documents
“serve as the OMB’s ‘intelligence’ on other agencies’ views
regarding the nature of their obligations in the legislative
clearance process” and they are used to help OMB personnel
 7

“determine the nature of their interactions” with those
agencies. Appellee’s Br. at 13.

We must evaluate these documents under the
predominant internality test established in Crooker v. Bureau
of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C.
Cir. 1981), read in the light of the Crooker en banc court’s
preservation of the holding of an earlier case, Jordan v. DOJ,
591 F.2d 753, 763 (D.C. Cir. 1978). In Jordan we had held
that the Justice Department’s prosecutorial guidelines did not
fall within the scope of Exemption 2. Crooker rejected much
of Jordan’s legal analysis, 670 F.2d at 1073, and held that an
agent’s training manual of the Bureau of Alcohol, Tobacco &
Firearms (BATF), governing law enforcement investigation
techniques, was covered by Exemption 2 because it was
predominantly internal and its disclosure significantly risked
circumvention of the law, id. at 1053. Crooker said, however,
that its new approach would not have changed the result in
Jordan because nothing in the Jordan opinion suggested that
disclosure would risk circumvention of the law and, in any
event, the documents at issue were not predominantly internal.
Id. at 1075.

Crooker conceded that the investigatory technique
policies described in the withheld portions of the BATF
manual had an effect on the public at large, as would almost
any agency policy. Id. at 1073. The court found “critical,”
however, that “the manual is used for predominantly internal
purposes; it is designed to establish rules and practices for
agency personnel . . . ; it involves no ‘secret law’ of the
agency . . . .” Id. The prosecutorial guidelines in Jordan, on
the other hand, were “a source of ‘secret law,’ as important to
the regulation of public behavior as if they had been codified.”
Id. at 1075.
 8

As applied to documents by which an agency guides its
personnel in conduct affecting others, the distinction our cases
draw seems a bit metaphysical, i.e., difficult to operationalize.
As to any such document, it is possible to assert, with equal
plausibility, that its “primary” purpose is to guide the
agency’s employees or, by guiding the employees’ conduct, to
affect the outside world. The puzzle is highlighted by Schiller
v. NLRB, 964 F.2d 1208 (1992), where we confronted
documents concerning the NLRB’s litigation strategies with
reference to the Equal Access to Justice Act. Of course the
“prosecutorial strategies” at issue in Jordan might be viewed
as simply a subset of “litigation strategies.” Yet, while the
NLRB strategies clearly affected outsiders—and were
presumably intended to influence the other parties’
behavior—we said that they merely “establish[ed] rules and
practices for agency personnel, and Mr. Schiller has given us
no reason to think that the documents contain any ‘secret
law.’” Id. at 1207. Accordingly we found them
predominantly internal. Similarly, in Nat’l Treasury
Employees Union v. U.S. Customs Serv. (“NTEU”), 802 F.2d
525, 531 (D.C. Cir. 1986), we classified statements of criteria
for agency employment as predominantly internal (a
conclusion indirectly bolstered, of course, by the documents’
clearly relating to “personnel”).

Must we then throw up our hands and arbitrarily choose
one of two contradictory assertions? I think not. Two
features may usefully distinguish Jordan from the three later
cases. As we described Jordan in Crooker, the strategies we
characterized as secret law were “as important to the
regulation of public behavior as if they had been codified.”
670 F.2d at 1075. To the extent that the prosecutorial
guidelines were the equivalent of flat-out no-prosecution
rules, they switched the conduct in question from unlawful to
 9

de facto lawful, as would, for example, a clear determination
not to prosecute marijuana offenses. Thus they (1) impacted
primary conduct and, as we understood them, (2) they did so
unequivocally (“as if they had been codified”). By contrast,
the investigative techniques in Crooker, the litigation
strategies in Schiller, and the employment criteria in NTEU
appear to have been aimed at peripheral activity: in Crooker at
parties’ concealment strategies; in Schiller at their behavior in
agency adjudications; in NTEU at their role as job applicants.
(Of course if persons dedicated to a career with the U.S.
Customs were fully informed about the documents withheld in
NTEU, they might mold their career paths to meet its interests;
but such an effect seems remote enough to justify our having
viewed the documents as predominantly internal.)

At bottom, the policy expressed in the documents here is
no more than a set of instructions to agency staff on how to
bargain with other agencies on an issue much less connected
to their primary conduct than submission to OMB approval of
their legislative or budget proposals, to wit, the dissemination
of information. See Jukes Memorandum (Feb. 20, 2001).
This external effect seems about as remote from the public’s
primary conduct as one can imagine. Nor do these documents
regulate the primary conduct of other agencies (assuming for
the moment that doing so would bring them within the scope
of Jordan); they deal only with the agencies’ horse-trading
with OMB on issues of bureaucratic information exchange—
the referral process. The panel characterizes that process as “a
key part of the legislative clearance process.” Maj. Op. at 13.
But OMB’s referral leverage strategies seem to stand in
relation to the basic clearance process in much the way the
criminal investigative procedures, administrative litigation
strategies, and agency employment criteria at issue in
Crooker, Schiller and NTEU relate to criminal law
 10

enforcement, administrative policy, and agency management
of personnel, i.e., so peripherally to the affected subjects’
primary conduct that they are properly seen as “predominantly
internal.”

Second, the documents are not at all comparable to any
kind of codification; within their mandate, one can easily
imagine temporary, partial accommodations. While the
bargaining strategy may well force other agencies to make a
choice, it is a far cry from the decriminalization of a whole
class of conduct.

The majority summarizes its view with the declaration
that where “agency documents have significant external
effects on other government agencies, we cannot deem them
‘predominantly internal.’” Id. at 16. I note that this is the first
case ever in which a document’s “external effects” operate in
the first instance on other federal agencies. I do not regard
that fact as dispositive: if the initial impact fell on another
government agency in such a way as to have clearly defined
effects on the public’s primary conduct, it would not make
sense to view the documents as “predominantly internal.”
And quite possibly an agency policy seriously impacting other
agencies’ primary conduct would fail the internality test.
Neither effect is present here. The case fits comfortably
within Crooker, Schiller and NTEU.

Circumvention of the law. The second prong of the “high
2” exemption is met if “disclosure would significantly risk
circumvention of agency regulations or statutes.” NTEU, 802
F.2d at 528. NTEU illustrates how we apply the criterion.
There we observed that because the agency’s evaluation
procedures were supposed to measure “actual experience and
proven ability,” in theory “advance knowledge of their content
 11

should not affect the rating of the candidates.” Id. at 529.
This conclusion would hold, however, only “if all applicants
can be depended upon to be meticulously correct in describing
their past experience and their quantified or quantifiable
abilities.” Id. In fact, affidavits from agency individuals
suggested that applicants could embellish many aspects of
their applications “in a manner that is not strictly fraudulent,
or that cannot be proven to be fraudulent.” Id. In light of
these affidavits, we found “that release of the plans creates a
significant risk that the Service’s applicant evaluation
program will be seriously compromised.” Id.

Here OMB expresses the concern that if other agencies
“knew OMB’s beliefs concerning their views or the views of
sister agencies, they could use this information to impede and
frustrate legislative clearance requirements,” Appellee’s Br. at
26, thus circumventing the legislative clearance process set
out in Circular A-19. Thus the claim does not appear to relate
to the documents’ normative instructions on referral of
documents to bypass agencies. As in NTEU, in theory the
information in the documents should not affect whether or not
an agency is subject to the clearance process. In practice,
however, this may hold only if agencies approach the process
with meticulous integrity. It is not fanciful to imagine that
they might change their behavior in response to the
information. Indeed, the majority believes that the
explanation of OMB’s policies has “significant external
effects on the behavior of other agencies.” Maj. Op. at 15. To
the extent that agencies are willing to game the system, the
information in these documents could help them do so.

OMB’s submissions on this issue, however, are on the
vague side. The Assistant Director for Legislative Reference
of the OMB said in his affidavit that disclosure of these
 12

materials “would reveal aspects of OMB’s evaluative process
concerning submission of agencies’ documents to Congress
without OMB’s clearance and the manner in which relevant
opinions and recommendations were formed.” Jukes Decl. at
11. But this statement, rather than being addressed directly to
circumvention, seems simply to assert the raw truism that
forced disclosure will reveal something about OMB’s thinking
process. The issue, though, is how agencies might use those
insights to undermine OMB’s efforts to assure compliance.
The record on that problem being too opaque for a well-
founded decision, I would remand to the district court for
further proceedings. See Sussman v. United States Marshal
Serv., 494 F.3d 1106, 1113 (D.C. Cir. 2007).

* * *

My colleagues argue that the documents at issue in this
case “lie at the core of what FOIA seeks to expose to public
scrutiny.” Maj. Op. at 16. Disclosure is, of course, FOIA’s
primary policy. See Crooker, 670 F.2d at 1074. But as
Crooker reminds us, “it will not do for us to act on the
primary purpose of the statute to the exclusion of all other
express congressional concerns,” such as “preserving the
effective operation of governmental agencies.” Id. Here, the
effectiveness potentially at stake is the President’s ability to
corral the government’s far flung agencies, many if not all of
them beholden to interest groups whose agenda may not track
the President’s, into support of a common, coherent program.
A fair application of the test developed by Crooker
demonstrates that the documents are predominantly internal.
If further proceedings establish that their disclosure risks
circumvention of the law, as seems quite plausible, OMB
should be able to protect them. I would therefore remand for
a better grounded decision on the circumvention issue.