WILKEY, Circuit Judge:
In an action brought under the Freedom of Information Act [FOIA]
After in camera inspection of the documents the District Court granted Montrose summary judgment, but deleted certain portions of one document without explanation. On cross-appeals from the District Court order we reverse the decision below, and hold that both summaries are within the intra-agency memoranda exemption and hence not subject to forced disclosure.
I. THE FACTUAL BACKGROUND
The two documents at issue here were prepared by staff of the EPA to summarize evidence adduced at EPA hearings on DDT, held pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA].
EPA regulations provide that the Judicial Officer review the record of the proceedings and render the final decision.
In the course of his consideration of the case, Ruckelshaus sought the assistance of his staff. Specifically, he requested the three EPA attorneys who were to hear the oral argument with him, and who had not been connected with the EPA position at the hearings, to review the record made at the hearings, and to direct the preparation of analyses of the evidence.
While Montrose contends that the summaries are factual and should be disclosed since a decision should be based on a public record, the EPA contends that the summaries are intra-agency memoranda, prepared as part of the deliberative process, exempt from disclosure under exemption 5. The EPA argues that the summaries contain no facts not already in the public record, and should remain confidential because of the need for full and free exchange of ideas in the decision-making process.
The District Court holding and rationale were put succinctly: "After consideration of the documents in camera, the Court finds that all or part of the documents constitute summaries of testimony, summaries of the record, conclusions of witnesses and other factual information and are not exempt from disclosure as intra-agency memoranda."
II. ANALYSIS OF EXEMPTION 5
The issue before the court, whether a staff-prepared summary of factual evidence on the record is within exemption 5 of FOIA, has not been adjudicated previously. However, exemption 5 itself has received careful attention by the Supreme Court, this court, and other federal courts. We first review the seminal case, Environmental Protection Agency v. Mink,
Exemption 5 must, of course, be interpreted in the context of the Freedom of Information Act as a whole. The broad goal of FOIA was to make available to the public a wide range of information in the Government's control.
In Environmental Protection Agency v. Mink, the Supreme Court considered the legislative history of exemption 5 and concluded that "Congress intended to incorporate generally the recognized rule that `confidential intra-agency advisory opinions . . . are privileged from inspection.'"
Some limitations were essential in interpreting exemption 5 to prevent the exception from engulfing the rule. One such limitation adopted by the Mink Court, was the dichotomy between factual and deliberative matters. When an intra-agency memorandum consisted of purely factual material, or such factual portions were easily severable from the deliberative portions, disclosure would be required.
This distinction drawn in Mink between factual and deliberative material
This distinction was not decisive in Soucie, because the District Court had mistakenly thought FOIA inapplicable to the governmental body involved, and a remand was necessary to develop an appropriate record.
Other cases in this Circuit have also recognized a distinction between purely factual and deliberative reports. Thus, for example, in Bristol Myers Co. v. FTC, we noted that
In none of these cases, however, was the distinction fully elaborated.
III. THE FACTUAL/DELIBERATIVE TEST IN LIGHT OF THE PRESENT CASE
In the case at bar this factual versus deliberative distinction is inadequate to resolve the difficult question whether the factual summaries should be exempt from disclosure. The difficulty arises because of the nature of the documents. It is agreed that the summaries in question are in large part compilations of facts introduced in evidence at the hearings, and on the public record.
This statement by EPA hits the heart of the issue here: Can Montrose use the FOIA to discover what factual information the Administrator's aides cited, discarded, compared, evaluated, and analyzed to assist the Administrator in formulating his decision? Or would such discovery be an improper probing of the mental processes behind a decision of an agency? These questions must be considered in the light of the statutory provision of FIFRA, which requires the Administrator's decision cancelling pesticide registrations to be "based only on substantial evidence of record."
Our solution rests on the interpretation of the purpose of exemption 5. If the exemption is intended to protect only deliberative materials, then a factual summary of evidence on the record would not be exempt from disclosure. But if the exemption is to be interpreted to protect the agency's deliberative process, then a factual summary prepared to aid an administrator in resolution of a difficult, complex question would be within the scope of the exemption.
The EPA assistants here were exercising their judgment as to what record evidence would be important to the Administrator in making his decision regarding the DDT registrations. Even if they cited portions of the evidence verbatim, the assistants were making an evaluation of the relative significance of the facts recited in the record; separating the pertinent from the impertinent is a judgmental process, sometimes of the highest order; no one can make a selection of evidence without exercising some kind of judgment, unless he is simply making a random selection.
Ruckelshaus' use of his assistants to winnow down the evidence was similar in many ways to a judge's use of his law clerk to sift through the report of a special master or other lengthy materials in the record. In both situations, when faced with a voluminous record, the decision-maker may wisely utilize his assistants to help him determine what materials will be significant in reaching a proper decision.
To probe the summaries of record evidence would be the same as probing the decision-making process itself. To require disclosure of the summaries would result in publication of the evaluation and analysis of the multitudinous facts made by the Administrator's aides and in turn studied by him in making his decision. Whether he weighed the correct factors, whether his judgmental scales were finely adjusted and delicately operated, disappointed litigants may not probe his deliberative process.
Morgan II involved in part the question of court review of the Secretary of Agriculture's decision-making process. Although the Court, again per Chief Justice Hughes, held that a full hearing had not been given, it noted that "it was not the function of the court to probe the mental processes of the Secretary in reaching his conclusions if he gave the hearing which the law required."
The use of the staff-prepared summaries by the Administrator does not conflict with his duty to decide the case on substantial evidence of record. Ruckelshaus has sworn in his affidavit that the summaries contain only evidence on the public record and analyses thereof.
Furthermore, this case is distinctly different from other FOIA cases where a decision-maker has referred to an intra-agency memorandum as a basis for his decision. In such cases this court has required disclosure of the memoranda, for, once adopted as a rationale for a decision, the memorandum becomes part of the public record.
Similarly, our case here is to be distinguished from a situation in which the only place certain facts are to be found is in the administrative assistants' memoranda. Here all the facts are in the public record. What is not in, and should not be in, the public record is the administrative assistants' evaluation and selection of certain facts from the 9200-page public record.
It is possible that the assistants in winnowing down the record may have made errors of inclusion or exclusion, or even gross distortions of fact. But these possibilities reflect human errors and misjudgments which are part of the deliberative process. The fact that errors may creep in and mislead the final decision-maker merely suggests that there may be errors in the deliberative or adjudicatory process; it does not mean that the preliminary studies by the staff are separate from the adjudicatory process or should be classified as part of the public record. The work of the assistants in separating the wheat from the chaff is surely just as much part of the deliberative process as is the later milling by running the grist through the mind of the administrator. And that some wheat is thrown away and some chaff included with the grain does not alter the nature of the process, even though it reflects error on the part of the assistants.
Exemption 5 was intended to protect not simply deliberative material, but also the deliberative process of agencies. When a summary of factual material on the public record is prepared by the staff of an agency administrator, for his use in making a complex decision, such a summary is part of the deliberative process, and is exempt from disclosure under exemption 5 of FOIA.
In reaching the conclusion that the documents here are exempt from disclosure, we do not reject the factual/deliberative test adopted in previous cases. Instead, we develop that test to recognize that in some cases selection of facts or summaries may reflect a deliberative process which exemption 5 was intended to shelter. Where the factual material is not already in the public domain, a different result might be reached. Here, however, where all facts are already on the record, and where the summaries were used simply as an aid in decision-making, the exemption applies; the order of the District Court requiring disclosure of parts of the summaries is therefore
410 U.S. at 87-88, 93 S.Ct. at 836. Furthermore, he stated that exemption 5 "requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other." Id. at 89, 93 S. Ct. at 837.
Id. at 693. (Citations omitted.)
Furthermore, the court indicated that it would be neither necessary nor proper for the summary to be made part of the record of the case if the summary was only used as an aid in interpreting the record.
Id. at 946. Furthermore, he stated that "the demand for this document seeks to lay bare the discussion and methods of reasoning of public officials. . . . This goes beyond the disclosure of primary facts upon which conclusions are based." Id. at 946-947. (Emphasis added.)