Rehearing and Rehearing en banc denied November 28, 1977.
Opinion for the court filed by TAMM, Circuit Judge.
Dissenting opinion filed by McGOWAN, Circuit Judge.
TAMM, Circuit Judge:
Mead Data Central, Inc. appeals from a judgment of the United States District
In early 1975, Mead Data filed a FOIA request with the Air Force seeking disclosure of several categories of documents dealing generally with the Department's "Project FLITE," a computerized legal research system.
In one of the affidavits the Chief of the General Litigation Division also amplified the reasons for his initial decision to deny disclosure. He stated that there were no factual portions of the documents which could be reasonably segregated, that they were all part of the deliberative process of the Air Force in negotiating a licensing agreement with West, and that disclosure would impair the deliberative process within the Air Force by inhibiting the free and frank exchange of ideas among Air Force personnel. J.A. at 31-32.
The parties filed cross-motions for summary judgment, and following an in camera inspection of the seven documents, the district court entered a judgment in favor of the Air Force. The court noted that although the Air Force's initial description of the withheld documents hardly comported with the requirements of Vaughn v. Rosen
II. PROCEDURAL REQUIREMENTS
The dispute between the parties in this case over whether the information sought by Mead Data is within exemption five of the FOIA centers basically around the question of how that information ought to be characterized. Mead Data contends that the information is purely factual and that consequently its disclosure would not adversely affect the Air Force's deliberative process. The Air Force argues to the contrary and insists that the documents withheld consist of advisory opinions, recommendations, and other deliberative material that fall squarely within exemption five.
Where there is such a factual dispute over the nature of the information sought in a FOIA suit, the lack of access of the party seeking disclosure undercuts the traditional adversarial theory of judicial dispute resolution. Vaughn v. Rosen (Vaughn I), 157 U.S.App.D.C. 340, 344-45, 484 F.2d 820, 824-25 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Although in camera inspection of the disputed documents may compensate somewhat for this deficiency, it is a far from perfect substitute.
Mead Data highlights the district court's conclusion that the Air Force's "grudging revelation at the administrative level . . . hardly comports with the procedures outlined in Vaughn v. Rosen," J.A. at 37 (emphasis deleted), and argues that the supplemental description provided by the affidavits submitted after suit was filed cannot be considered in our decision as to whether the Department has met its procedural obligations. We agree with Mead Data that the objective of the Vaughn requirements, to permit the requesting party to present its case effectively,
In a FOIA action the district court is not limited to review of the quality of agency decision-making. It decides a claim of exemption de novo, and the agency's opinions carry no more weight than those of any other litigant in an adversarial contest before a court. We do not excuse the Air Force's failure to provide Mead Data with sufficient detail about the nature of the withheld documents and its exemption claims at the administrative level, but for purposes of this case those inadequacies are irrelevant. We are not reviewing the agency's decision or even the district court's approval of an agency decision. We are reviewing only the district court's independent and de novo decision that the information withheld by the Air Force is indeed protected from disclosure by exemption five. If we are to reverse the trial judge, Mead Data must show that either he incorrectly decided that the requested information was exempt
Considering the elaborated description and justification provided by the Air Force's affidavits, we agree with the district court that the withheld documents were described in sufficient detail to allow Mead Data to argue effectively against the Department's exemption claims. In this respect, the present case is far different from the situation which sparked the remand in Vaughn I—broad, sweeping, generalized claims under several exemptions covering voluminous information running many hundreds of pages. See 157 U.S.App.D.C. at 345-46, 484 F.2d at 825-26. The documents withheld by the Air Force in this case consist
III. EXEMPTION FIVE CLAIMS
Exemption five of the FOIA exempts from mandatory disclosure those matters that are "intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5) (1970). Although Congress clearly intended to refer the courts to discovery principles for the resolution of exemption five disputes, the situations are not identical,
A. Legal Opinions
The district court held that exemption five permitted the Air Force to withhold documents 1, 4, and 5 because they contained information which qualifies for protection under the attorney-client privilege—confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice.
Other courts have also found that exemption five encompasses the attorney-client privilege. In NLRB v. Sears, Roebuck & Co.,
The Air Force's description of documents 1, 4, and 5 adequately demonstrates that the information in those documents was communicated to or by an attorney as part of a professional relationship in order to provide the Air Force with advice on the legal ramifications of its actions. To that extent it satisfies most of the necessary conditions for application of the attorney-client privilege.
The description of documents 1 and 5 gives no indication as to the confidentiality
B. Internal Memoranda
The district court decided that the remaining documents, documents 2, 3, 6, and 7,
It generally has been accepted that exemption five incorporates the governmental privilege, developed in discovery cases,
Congress adopted exemption five in recognition of the merits of arguments from the executive branch 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.
Many exemption five disputes may be able to be decided by application of the simple test that factual material must be disclosed but advisory material, containing opinions and recommendations, may be withheld. The test offers a quick, clear, and predictable rule of decision, but courts must be careful not to become victims of their own semantics. Exemption five is intended to protect the deliberative process of government and not just deliberative material. Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 275-278, 491 F.2d 63, 68-71 (1974). Perhaps in the great majority of cases that purpose is well served by focusing on the nature of the information sought. In some circumstances, however, the disclosure of even purely factual material may so expose the deliberative process within an agency that it must be deemed exempted by section 552(b)(5).
Mead Data argues that documents 6 and 7 are "reportorial and factual in nature rather than policy deliberative," Brief for Appellant at 21, because they only provide summaries of discussions among Air Force staff relating to the negotiating positions of the Department and West Publishing Co. and do not affirmatively make recommendations or offer opinions. Discussions among agency personnel about the relative merits of various positions which might be adopted in contract negotiations are as much a part of the deliberative process as the actual recommendations and advice which are agreed upon. As such they are equally protected from disclosure by exemption five. See Ash Grove Cement Co. v. FTC, 171 U.S.App.D.C. 285, 286, 519 F.2d 934, 935 (1975). It would exalt form over substance to exempt documents in which staff recommend certain action or offer their opinions on given issues but require disclosure of documents which only "report" what those recommendations and opinions are. The evaluations, opinions, and recommendations reported in documents 6 and 7 are the raw materials which went into the decision of the Air Force to contract with West Publishing Co. on certain terms. This is not a case like Schwartz v. IRS
Document 3 consists entirely of a running summary of the offers and counter-offers made by each side in the Air Force's negotiations with West Publishing Co. The Air Force insists that this information is exempt simply because it reflects negotiating positions of the parties which predate the final agreement on the contract terms. The district court apparently accepted this proposition, for in holding that documents 2, 3, 6, and 7 fit "squarely" within exemption five, it reasoned that "[e]ach document reflects ongoing developments in a Government negotiating process." J. A. at 40. We find this to be an entirely too broad reading of exemption five. Predecisional materials are not exempt merely because they are predecisional; they must also be a part of the deliberative process within a government agency. Vaughn v. Rosen (Vaughn II), 173 U.S.App.D.C. 187, 195, 523 F.2d 1136, 1144 (1975). The documents in this case which would reveal the Air Force's internal self-evaluation of its contract negotiations, including discussion of the merits of past efforts, alternatives currently available, and recommendations as to future strategy, fall clearly within this test. Information about the "deliberative" or negotiating process outside an agency, between itself and an outside party, does not. Moreover, neither of the policy objectives which exemption five is designed to serve—avoiding premature disclosure of agency decisions and encouraging the free exchange of ideas among administrative personnel—is relevant to a claim of secrecy for a proceeding between
Perhaps it could be shown that the threat of disclosure of negotiation proceedings would so inhibit private parties from dealing with the Government that agencies must be permitted to withhold such information in order to preserve their ability to effectively arrange for contractual agreements. Cf. Brockway, supra, 518 F.2d at 1193; Machin v. Zuckert, 114 U.S.App.D.C. 335, 316 F.2d 336, cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963). Arguments that the disclosure mandated by the FOIA would seriously hamper the performance of an agency's other duties have not fared well in the courts, however.
Whatever might be shown with respect to the harm caused by disclosure of the offers and counter-offers made during negotiation of a government contract, the justification claimed by the Air Force in this case is far from sufficient. Unless far more compelling reasons are brought forth on remand and supported by adequately detailed proof, the district court will have no option but to compel disclosure of document 3.
IV. AIR FORCE REGULATIONS
Since the exemptions to the FOIA are permissive rather than mandatory, particularly with respect to information that does not raise issues of individual privacy rights, an agency may impose upon itself a more liberal disclosure rule than that required by the FOIA.
In both its initial reply to Mead Data's request and notification of the result of Mead Data's administrative appeal, the Air Force indicated that it would not disclose the information requested because to do so "would inhibit Air Force personnel from expressing their candid opinions in the future," J. A. at 8, "and adversely affect the decisional process within the Air Force." Id. at 10. In his affidavit, filed in the district court, the Chief of the Air Force's General Litigation Division reiterated that he had denied disclosure because it "would
Mead Data argues that these reasons are too vague and speculative and that only a specific showing of the specific injury that would result from disclosure of each document would satisfy the regulation's requirement. Certainly, as we have reaffirmed above, an agency must show by detailed and specific justification that information it seeks to withhold from public disclosure falls within one of the exemptions to the FOIA. Once that is shown, however, the FOIA "does not apply,"
The exemptions from the mandatory disclosure requirement of the FOIA are both narrowly drafted and narrowly construed in order to counterbalance the self-protective instincts of the bureaucracy which, like any organization, would prefer to operate under the relatively comforting gaze of only its own members rather than the more revealing "sunlight" of public scrutiny. Where there is a balance to be struck, Congress and the courts have stacked the scales in favor of disclosure and against exemption. Exempt material represents only that small subset of government records for which Congress has determined that an absolute and generalized disclosure rule would do more harm than good and therefore has left the decision to the agencies to be made on a case-by-case basis. Since the public's right of access to government information is already well protected by the breadth of the disclosure requirement of the FOIA and since the agency's discretion is already confined to a narrow class of information, there is less need for exacting court scrutiny of an agency's decision not to disclose exempt material. Of course, we must require the Air Force to meet the standard it has set for itself, but in doing so we should not be quick to interpret the Department's regulation in derogation of the discretion which the FOIA has left to it.
The reasons which the Air Force initially provided, and later amplified, for its decision to deny disclosure are completely consistent with the policy objectives of exemption five and are clearly applicable to the type of information described in its communications to Mead Data and the district court. Mead Data does not contend that these were not in fact the concerns which prompted the Air Force's action. It simply attacks the merits of the Air Force's conclusion that they provide a significant and legitimate reason to withhold exempt material. We cannot say, in light of the record before us, that the Air Force abused its discretion in reaching that conclusion.
Although the attorney-client privilege or the privilege protecting the deliberative process within agencies may apply to some of the material in the documents which the Air Force has withheld from Mead Data, it appears that these documents also contain information which is not exempt. The Air Force's description of the documents allegedly exempt under the attorney-client privilege indicates that they contain information which does not meet the confidentiality requirement of that privilege,
The focus of the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material. It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.
The Air Force did not address the segregability issue in its administrative responses to Mead Data. In an affidavit submitted to the district court it stated, however, that there "were no factual portions . . . which could be reasonably segregated." J. A. at 31. No supporting justification was offered for this conclusion, but the Air Force argues that its accuracy has been assured in this case because the district court reached the same decision after its in camera inspection of the documents. Both the decision of the Air Force and the district court, however, rest on overly broad interpretations of the attorney-client and deliberative process privileges. Neither considered the segregability of information in the documents covered by the attorney-client privilege which was not confidential since it had also been disclosed to West Publishing Co. Similarly, both the Department and the court erroneously extended the deliberative process privilege beyond the deliberative process within the agency to also include information about what offers and counter-offers were actually made in the negotiations with West.
It seems quite likely that this non-exempt material can be disclosed without compromising the secrecy of whatever exempt information remains. On remand, the Air Force should provide, to the court and Mead Data, a description of which parts of the withheld documents are non-exempt under the narrower construction of the applicable privileges given in this opinion, and either disclose them or offer adequate justification for continuing to withhold them.
We recognize that the question of segregability is completely dependent on the actual content of the documents themselves and that the requesting party is helpless to counter agency claims that there is no non-exempt and reasonably segregable material within a withheld document. It is no adequate answer to say that the courts are free to review the agency's conclusion after a full in camera inspection of the documents. Adding another layer of secret decision-making may increase the statistical chance of disclosure, and indeed, a judge is free of the self-interest in secrecy that might color an administrative official's decision. Nonetheless, in camera decisions in such situations are still essentially ex parte and unaided by the benefits of adversarial proceedings which buttress the validity of judicial decisions. As we have emphasized, the FOIA places the burden of justifying nondisclosure on the agency seeking to withhold information, and this burden cannot be shifted to the courts by sweeping, generalized claims of exemption for documents submitted for in camera inspection. See Vaughn I, supra, 157 U.S.App.D.C. at 345-46, 484 F.2d at 825-26.
In addition to a statement of its reasons, an agency should also describe what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document.
Certainly these procedures add significantly to the resource costs an agency must bear if it chooses not to disclosure material it has in good faith decided is exempt. Those burdens may be avoided at the option of the agency, however, by immediate disclosure. Congress has encouraged the agencies to disclose exempt material for which there is no compelling reason for withholding,
Requiring a detailed justification for an agency decision that non-exempt material is not segregable will not only cause the agency to reflect on the need for secrecy and improve the adversarial position
The district court's judgment that exemption five of the FOIA permits the Air Force to withhold all of the material in the seven documents at issue in this case rests on an impermissibly broad interpretation of the attorney-client privilege and the deliberative process privilege. We therefore remand the case for further proceedings under the narrower constructions outlined
McGOWAN, Circuit Judge, dissenting:
Since I find no significant fault with the District Court's disposition of this case, I would affirm the judgment under review. The record shows that the Air Force took seriously the FOIA request and voluntarily supplied a very substantial amount of the information requested. In the District Court proceeding, it also provided what seemed to the district judge—and now seems to me—detailed and informative descriptions of the nature and content of the seven documents in issue, which strongly suggest the availability of the claimed exemption. The district judge took the additional precaution, expressly envisaged by the statute, of examining those documents in camera. Under these circumstances I do not think this court on appellate review is warranted in questioning the result reached unless it plainly appears that he was proceeding on some erroneous legal assumptions—and none are visable to me. Though I am in essential agreement with the views expressed in the District Court's memorandum and order, I venture a comment on certain portions of the panel's opinion.
First, with respect to the attorney-client privilege, I have grave doubts about some of the assumptions which seem to form the foundation of the majority's position. The majority apparently believes that, because West was privy to the course of contract negotiations between itself and the Air Force, the attorney-client privilege cannot apply to legal opinions rendered by Air Force legal officers to the service's contracting and other supervisory personnel. As I understand it, the logic proceeds as follows:
Adoption of this position would go a long way toward eliminating the attorney-client privilege altogether. In the vast majority of cases, attorney-client discussions concern the client's dealings or relationship with one or more third parties. The mere fact that those third parties are aware of the factual details of their interaction with the client cannot automatically defeat a claim of confidentiality asserted in connection with the client's recounting of that interaction to his attorney. If it could, legal opinions based in part on a client's version of prior negotiations with third parties would always be outside the scope of the privilege.
I think the majority errs in assigning such crucial importance to West's knowledge in this case. The key point is not whether West is familiar with the course of negotiations between the parties, but whether the Air Force's communication with its legal counsel was confidential, i. e., whether the Air Force legitimately expected that its summary of past events to its counsel would remain undisclosed. I do not see why it should not have had that expectation. There is no indication that West or any other third person was privy to the communications between the Air Force and its attorneys. There is no indication that the Air Force publicized, intended to publicize, or expected its attorneys to publicize the substance of those communications to anyone outside the service. That West was aware of some of the facts reported to the Air Force lawyers seems to me largely irrelevant.
Secondly, I think the majority has taken an unnecessarily restrictive view of what constitutes the deliberative process. The opinion states that documents revealing "internal self-evaluation" of contract negotiations would be comprehended within the deliberative process privilege, but information about the actual progress of negotiations with a third party would not. This distinction seems to be untenable. Even a bare recitation of the offers and counter-offers between West and the Air Force cannot help but reflect internal agency decisions and negotiation strategy. Offers made in the course of contract negotiations do not inevitably represent final agency decisions, simply by virtue of the fact that such offers were made to private parties during the bargaining process. The preferable view, I think, is that final action occurs only when the agency definitively determines whether or not to enter into a contract. It is entirely possible, for example, that a particular contract offer was made to West in the full expectation that it would in all likelihood be refused, but would nevertheless lay the groundwork for a later, and substantially altered, proposal.
Finally, though I have no quarrel with the more detailed reporting on segregability which the majority would require from agencies generally, in this case I believe the majority has identified for segregation and disclosure certain matters which need not be segregated and disclosed. To the extent the court's opinion underestimates the coverage of the attorney-client and deliberative process privileges, it correspondingly overestimates the amount of non-exempt material in the seven contested documents which must be separated and released.
5 U.S.C. § 552(b)(5) (1970).
The third was listed as:
Memo, undated, subject: West Negotiations.
J.A. at 7.
Discussion of documents 1, 4 & 5 may be found in the text at pages ___-___ of 184 U.S.App.D.C., at pages 252-255 of 566 F.2d; of document 3 at pages ___-___ of 184 U.S.App.D.C., at pages 255-258 of 566 F.2d; and of documents 6 & 7 at pages ___-___ of 184 U.S.App.D.C., at pages 255-257 of 566 F.2d, infra.
Although traditionally the attorney-client privilege has rested on the need to foster a relationship of trust and free discussion between a lawyer and a private client, there are decisions which have applied it to deny a discovery request directed toward a government. Hearn v. Rhay, 68 F.R.D. 574, 579 (E.D.Wash.1975); People v. Glen Arms Estate, Inc., 230 Cal.App.2d 841, 41 Cal.Rptr. 303, 310 (1st Dist. 1965); see McCormick on Evidence § 88, at 181 & n.34 (E. Cleary ed. 1972); cf. United States v. Alu, 246 F.2d 29, 33-34 (2d Cir.1957) (principle that lawyer should not be witness for his client applicable to government as well as private attorneys).
The only indication of the information base for document 5 is that it is in part a comment on the legal opinion given in document 1 and must be based to that extent on the facts described in document 4. Of course, since we find that the description of the factual basis of document 4 is insufficient to support the claim of privilege for document 4, it is equally unavailing to the claim for document 5.
Our dissenting brother structures his concern relative to the attorney-client privilege in sound generalities which unfortunately disregard the basic fact that this case arises under the Freedom of Information Act. The documents under discussion constitute but a small part of substantial exchanges of correspondence involving a potential licensing agreement between a government agency and a private business enterprise. The court's problems in this particular case grow out of its need to reconcile one of the enumerated exemptions enacted to protect important interests in confidentiality with the overall congressional intent of ensuring comprehensive public access to government records.
While the attorney-client privilege retains its essential vitality within our prevailing jurisprudence, as in this case there are bound to be situations when the items to which it may apply by "rough analogy" must be evaluated in relation to the laws governing such privileges and the general precept that the FOIA's exemptions are to be narrowly construed. In situations such as now confront us, courts must objectively weigh the merits and requirements of each contention, evaluate the contentions of the parties in light of all applicable law, and rule in accord with the dominant interest of either confidentiality or public access. This is, we submit, precisely what the court has done in this case. It has found that, at least on the present record, portions of the documents in dispute may lie outside the properly defined scope of the attorney-client privilege and consequently is remanding the case to the district court for further proceedings necessary to a proper resolution of this issue.
Even limited-purpose in camera inspection may not be necessary to decide every segregability issue. In Weissman v. CIA, we held that the district court did not abuse its discretion in refusing to verify agency claims "[w]here it is clear from the record that an agency has not exempted whole documents merely because they contain some exempt material." 184 U.S.App.D.C. ___, at ___, 565 F.2d 692, at 698 (1977). We detailed the facts in the record that supported our holding as follows:
Id. at ___, 565 F.2d at 698. In similar situations or where there are other compelling reasons not to doubt full administrative compliance with the segregability requirement of the FOIA, the choice whether to conduct in camera inspection should be left to the discretion of the district courts.
At 946 (footnote omitted).
Of course, the Court of Claims opinion in which these remarks appeared was written long before the passage of FOIA. In quoting Justice Reed's statement, the Supreme Court did not focus on the question of whether an individualized showing of potential harm to future government deliberations is a prerequisite to successful invocation of FOIA's fifth exemption. Arguably at least, by its enactment of the fifth exemption, Congress intended to make such a particularized showing unnecessary. The exemption may create a statutory presumption (whether conclusive or rebuttable we do not, and need not, say on this record) to the effect that disclosure of nondiscoverable intra-agency memoranda will harm internal government consultation and decision-making. If this interpretation is correct, it would render superfluous the District Court's specific finding that release of the documents here at issue would harm future government contract negotiations.
In this case, as the majority has indicated, the Air Force's own regulations provide that even records exempt from mandatory disclosure will be released unless it is "determined that a significant and legitimate Government purpose would be served by exercising the exemption." 32 C.F.R. § 806.23 (1976). The Air Force found that such a purpose would be served by a refusal to disclose the seven documents sought by appellant. Like the majority, I cannot say that this finding constituted an abuse of discretion. And, given its views on the likelihood of future harm, the District Court surely would have ruled similarly, if it had addressed the question in precisely this form.