MURPHY v. DEPT. OF ARMY

Opinion for the Court filed by District Judge GREENE.

HAROLD H. GREENE, District Judge:

This is an appeal from a grant of summary judgment in favor of the government in an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The principal question presented is whether the deliberative process privilege encompassed in Exemption Five of the Act (5 U.S.C. § 552(b)(5)) was waived when the documents sought by appellant were disclosed to a Member of Congress.

I

Appellant is a staff member of the Kentucky Rivers Coalition, an organization concerned with the effects of dam construction in Kentucky. Some time prior to 1976, the Department of the Army and the Commonwealth of Kentucky agreed upon a cost-sharing plan for the joint development of water resources, including a dam, at Kehoe Lake, Kentucky, subject to the approval of the Secretary of the Army. Before that approval could be granted, an action was filed challenging the legality of a similar contract for another water resources development project in that state. Gividen v. Corps of Engineers, CA No. 76-0074L(A) (W.D.Ky. filed February 17, 1976). The issue in that litigation, as well as in subsequent proceedings pertinent to this case, was whether Kentucky was legally obligated to repay the federal government for its share of the costs of construction as required by 42 U.S.C. § 1962d-5a and 5b,1 in view of a state constitutional provision prohibiting agreements binding upon future legislatures. When advised of the pending lawsuit, the Army Corps of Engineers and the Office of General Counsel of the Army concluded that it was necessary to secure confirmation of Kentucky's intention and authority to honor the cost-sharing provisions of the contract, and they contracted the state government to ascertain its views.

In a letter dated June 1, 1976, Governor Carroll of Kentucky expressed his intent to honor the cost-sharing provisions but he, too, acknowledged that unresolved constitutional questions were present. Notwithstanding that reservation, the Army authorities initially regarded the Governor's letter to be an adequate undertaking in compliance with federal law. However, when they became aware that a group of citizens might challenge the Kehoe Lake contract itself as illegal under Kentucky law, the Assistant Secretary of the Army for Civil Works asked the Army General Counsel, on August 2, 1976, for a review of the contract, advice on its legal adequacy, and recommendations on whether it should be approved. The General Counsel responded by a memorandum dated August 24, 1976, providing such advice and recommendations.

Shortly thereafter, the Assistant Secretary received a communication from Congressman Robert Jones, Chairman of the House Committee on Public Works and Transportation, who expressed the opinion that, in view of Governor Carroll's assurance, the contract was in compliance with federal requirements. Upon receipt of this letter, and after discussing the issue with Congressman Carl D. Perkins,2 who represents the district in which the project was to be constructed, the Assistant Secretary decided to seek further advice from the General Counsel on the legal adequacy of the contract. The General Counsel's Office responded by a memorandum dated October 18, 1976, the document primarily in issue here.

Upon receipt of a communication from an attorney who again suggested the possibility of litigation, the Assistant Secretary wrote to Congressman Perkins notifying him that, in "an effort to bring the matter to a conclusion as expeditiously as possible," he intended to contact Governor Carroll once more.3 He also advised Congressman Perkins that the Jones letter had been reviewed by the General Counsel's Office; that the October 18, 1979, memorandum had been prepared in response thereto; and that "the contract, as it now stands, does not legally obligate the Commonwealth of Kentucky to repay to the Federal Government its share of the costs. . . ." A copy of the October 18 memorandum was enclosed.

In December 1976, appellant filed an FOIA request with the Army seeking "all copies of written communication to [the Army Secretary's] subordinates in the Corps of Engineers . . . where the position the Secretary of the Army's position regarding the cost-sharing contract at the Kehoe Lake project is made" (sic), and another request, more specifically demanding documents relating to the legality of the cost-sharing provisions of the contract, was submitted a short time thereafter. In response, the Army provided appellant with twenty-one documents in full;4 withheld minor portions of the two memoranda from the Assistant Secretary to the General Counsel;5 and withheld all or almost all of the two reply memoranda prepared by the General Counsel's Office.6

The FOIA action filed in the District Court on September 15, 1977, sought the material withheld from these four documents. That court inspected the "key opinion" of October 18 in camera and determined that, inasmuch as a "final decision as to whether or not the dam will be constructed awaits the outcome of related litigation now in progress . . . [and] the documents are directly related to the formulation of policy not yet decided. . ., [the two memoranda prepared by the General Counsel] are protected and exempted from disclosure by the deliberative process privilege contained in . . . § 552(b)(5)." The court further held that the privilege was not waived by disclosure of the October 18 memorandum to Congressman Perkins.7 This appeal followed.

II

There is on this record no question but that the August 24 and the October 18, 1976, memoranda were protected from disclosure by Exemption Five of the FOIA. 5 U.S.C. § 552(b)(5) provides in pertinent part that:

In Mead Data Central, Inc. v. U.S. Department of the Air Force, 184 U.S.App.D.C. 350, 566 F.2d 242 (1977), this court considered in some detail Exemption Five as it encompasses what has been referred to as the deliberative process privilege. As we there stated (184 U.S.App.D.C. at 364, 566 F.2d at 256):

See also, National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965); H.R.Rep.No.1497, 89th Cong., 2d Sess. 10 (1966), U.S.Code Cong. & Admin.News 1966, p. 2418.

The exchange of memoranda between August 2 and October 18, 1976, represents a classic case of the deliberative process at work. The Assistant Secretary who had the decision-making power with respect to the Kehoe Lake project sought advice from the General Counsel of his department on the legal questions raised in Kentucky and the strategy to be pursued in view of the controversy surrounding the state's ability to enter into the agreement, and the General Counsel responded by the August 24 and October 18, 1976, memoranda. It may be that these memoranda could have been withheld in reliance on the attorney-client privilege, also encompassed in Exemption Five,8 but unquestionably they qualify under the deliberative process exemption.9

III

This conclusion does not end our task. The critical document was furnished by the Army to Congressman Perkins, and appellant argues that this disclosure constitutes a waiver of the FOIA privilege. We do not find it necessary to explore fully to what extent and under what circumstances disclosure might affect the applicability of Exemption Five, under doctrines of waiver10 or possibly other doctrines,11 for it is evident that the disclosure to the Congressman could not have had that consequence.

Section 552(c) of title 5, U.S.Code, specifies that the exemption section of the Act "is not authority to withhold information from Congress." Appellant argues that this provision does not address the waiver question and is, in fact, irrelevant to it. We disagree.

Under appellant's construction, the special reservation of congressional access to executive information embodied in section 552(c) would be significantly undermined. First, the interpretation for which appellant contends—that disclosure of information to Congress is disclosure to the whole world— is inconsistent with the obvious purpose of the Congress to carve out for itself a special right of access to privileged information not shared by others. Second, appellant's proposed construction would effectively transform section 552(c) into a congressional declassification scheme, a result supported neither by the legislative history of the Act,12 nor by general legal principles13 or common sense. Third, since under such an interpretation every disclosure to Congress would be tantamount to a waiver of all privileges and exemptions,14 executive agencies would inevitably become more cautious in furnishing sensitive information to the legislative branch—a development at odds with public policy which encourages broad congressional access to governmental information.

For these reasons, we conclude that, to the extent that Congress has reserved to itself in section 552(c) the right to receive information not available to the general public, and actually does receive such information pursuant to that section (whether in the form of documents or otherwise), no waiver occurs of the privileges and exemptions which are available to the executive branch under the FOIA with respect to the public at large.

Appellant argues in the alternative and more narrowly that section 552(c) should be construed to apply only to a release of information to the Congress as a body, and that when information is furnished to a legislative entity other than the entire Congress, such as a committee, or to a single Member of Congress, FOIA privileges attaching to such information must be deemed waived just as they would be if disclosure had been made to a private person.

This view of the statute is not consistent with the mode of operation of the Congress. Except when it finally and formally enacts legislation, the Congress rarely acts as a body. Its manifold duties in the legislative, investigative, and oversight fields are almost invariably carried out through committees, committee chairmen, individual members, and staff personnel.15 Thus, a construction of section 552(c) which would relate it only to action of Congress as an entity would render the provision largely meaningless, and it is no doubt for that reason that it has previously been implicitly rejected by this court, at least with regard to the release of information to standing committees of the Congress. See Aspin v. Department of Defense, 160 U.S.App.D.C. 231, 491 F.2d 24 (1973), where the court upheld a ruling that a report on the My Lai incident in Viet Nam was privileged from disclosure under the FOIA even though it had previously been released to the Armed Services Committees of both Houses of Congress.16 See also, K. Davis, Administrative Law Treatise § 3A.5 (1970 Supp.); Safeway Stores, Inc. v. Federal Trade Commission, 428 F.Supp. 346 (D.D.C.1977); Kanter v. Internal Revenue Service, 433 F.Supp. 812, 825 n.22 (N.D.Ill.1977); Exxon Corp. v. Federal Trade Commission, 384 F.Supp. 755 (D.D.C.1974).

Similarly, we find no basis in the statute or in public policy for distinguishing for FOIA purposes between a congressional committee and a single Member acting in an official capacity. The Senate and the House are so organized that certain legislative and quasi-legislative activities may be accomplished only through committee action. In other respects, however, the legislature acts through its individual Members. All Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information. It would be an inappropriate intrusion into the legislative sphere for the courts to decide without congressional direction that, for example, only the chairman of a committee shall be regarded as the official voice of the Congress for purposes of receiving such information, as distinguished from its ranking minority member, other committee members, or other members of the Congress. Each of them participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.

The hierarchical construction proposed by appellant loses sight of the realities of the work of the Congress. The statute is more sensibly constructed to make congressional access to information, as well as the related question of whether such access, when achieved, constitutes a waiver of FOIA exemptions, dependent upon whether the particular executive-legislative communication is an official one: when a document is released for official congressional purposes, a waiver of an FOIA exemption is not implied, whoever in Congress may be the recipient of the information. On the other hand, when a Member of Congress receives executive documents or files in a purely private or personal capacity, the information may no longer be entitled to confidentiality.

Congressman Perkins received the memorandum which is the principal subject of this litigation in his official capacity. He is the Congressman in whose district the new facility was to be located. His constituents, the citizens who elected him to represent them in the national legislature, would surely be directly and substantially affected by the establishment of, or the failure to establish, this kind of public works project. As their elected representative, he possesses an official interest in the governmental actions and deliberations described in the documents here at issue.17

These conclusions are not inconsistent with the principle that, as a matter of public policy, the FOIA exemptions are to be narrowly construed, Department of the Air Force v. Rose, 425 U.S. 352, 360-62, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); indeed, they are sustained by that principle. This case does not involve the breadth of Exemption Five; the documents sought by appellant are plainly immune from disclosure under that exemption. What is at issue is the construction to be given to that provision of the law which safeguards congressional access to executive information notwithstanding the FOIA exemptions and the relationship of that provision to the question of when confidentiality is waived or destroyed by disclosure to a third party. The same policy considerations which favor a narrow construction of the exemptions—desirability of maximum access to government information and minimum secrecy—support a broad interpretation of the provision which safeguards unimpeded congressional access.

Since the congressional access authority under section 552(c) is, and perforce must be, coextensive with the non-waiver consequences flowing from disclosure pursuant thereto; it is hardly in the public interest to give a niggardly construction to that provision. Congress, whether as a body, through committees, or otherwise, must have the widest possible access to executive branch information if it is to perform its manifold responsibilities effectively. If one consequence of the facilitation of such access is that some information will be disclosed to congressional authorities but not to private persons, that is but an incidental consequence of the need for informed and effective lawmakers. As noted supra, the rule appellant contends for would tend to "dry up" the executive flow of information to the Congress since it would strip that information of whatever privilege it might otherwise possess. Appellant's concern that such a disclosure policy may permit executive selectivity and favoritism may be left, as it has always been, to the political checks and balances. See Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).18

IV

Appellant finally argues that, if exempt material is made available to a member of Congress, its confidentiality must be considered waived in the absence of an express understanding that the recipient was to maintain its confidentiality.

No specific request was made by the Army to Congressman Perkins that he keep the document confidential, nor did he represent to that Department that he would not disclose the contents of the document to third persons. On the contrary, on two different occasions the Congressman offered to provide the document to an environmental group opposing construction of the dam.19 Appellant deduces from these facts that the information was not provided to Congressman Perkins on a confidential basis, and that any privilege that might otherwise attach to it was therefore dissipated. The Army's reply that "[t]he context of the disclosure to Congressman Perkins in his official capacity reflected the understanding that the document was provided solely for his information and was not to be disclosed to third persons," does not constitute a conclusive answer, for, depending on the circumstances, had Congressman Perkins actually disclosed the document to others outside the Congress the privilege might have been lost. But whatever the Congressman's public statements about the document and on the general issue of confidentiality, the fact is that he did not disclose the document or its contents to any third person.

At least initially, the test of confidentiality is an objective one, and if a document is in fact privileged or confidential, it is not divested of that quality merely because that status has not been expressly made known to the recipient. See Charles River Park "A", Inc. v. Department of Housing and Urban Development, 171 U.S.C.App.D.C. 286, 519 F.2d 935 (1975); National Parks and Conservation Association v. Morton, 162 U.S.App.D.C. 223, 498 F.2d 765 (1974); Robles v. EPA, 484 F.2d 843, 846 (4th Cir.1973); and see, Judge McGowan's dissent in Mead Data Central, supra, 184 U.S.App.D.C. at 372, 566 F.2d at 264, who observed that a matter is confidential for purposes of Exemption Five when the originating party legitimately expects that the recipient will not disclose it.20 It is only when there is an actual disclosure that such information may lose its privileged status.

The October 18 document was clearly within the ambit of the deliberative process exemption; as a memorandum reflecting legal advice within a government department an expectation of confidentiality may be assumed; and the document has not in fact been disclosed to the public.21 In these circumstances the October 18 memorandum did not forfeit its confidential status notwithstanding that it was turned over to Congressman Perkins without an explicit warning or his unexecuted intentions with regard to its publication.

We hold that the withheld material was exempt from disclosure to appellant by virtue of 5 U.S.C. § 552(b)(5), and that it did not lose its exempt character as a consequence of its disclosure to a Member of Congress.22 The judgment of the District Court is accordingly

Affirmed.