Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
In this appeal, the Internal Revenue Service ("Agency" or "IRS") challenges the district court's judgment that the Freedom of Information Act ("FOIA")
On March 5, 1979, Arthur Andersen & Co., a national public accounting firm, requested of the IRS, pursuant to FOIA and IRS public disclosure rules,
On June 11, 1980, the parties signed a stipulation covering all but one of the withheld documents. The parties agreed to submit the documents to the court for in camera inspection and to each file "position papers" setting forth its case for disclosure or exemption and a reply to the other party's position paper.
Exemption 5 permits an agency to withhold documents that "would not normally be discoverable by a private party in the course of civil litigation with the agency." Jordan v. Department of Justice, supra, 591 F.2d at 772. "Congress intended that agencies should not lose the protection traditionally afforded through the evidentiary privileges simply because of the passage of the FOIA." Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C.Cir.1980). Among those privileges protected by Exemption 5 is the "executive `deliberative process' privilege," id., which is "unique to the government." Id. at 866. This privilege covers "`all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be.'" NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 153, 95 S.Ct. at 1517 (quoting Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 797 (1967)). "The point, plainly made in the Senate Report, is that the `frank discussion of legal or policy matters' in writing might be inhibited if the discussion were made public; and that the `decisions' and `policies formulated' would be the poorer as a result." Id. at 150, 95 S.Ct. at 1516 (quoting S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965)). However, because the quality of a decision is unlikely to be "affected by communications with respect to the decision occurring after the decision is finally reached," id. at 151, 95 S.Ct. at 1516, forced disclosure of post-decisional communications is unlikely to affect the quality of the decision, "as long as prior communications and the ingredients of the decisionmaking process are not disclosed." Id. Further "[p]redecisional documents are thought generally to reflect the agency `give-and-take' leading up to a decision that is characteristic of the deliberative process; whereas post-decisional documents often represent the agency's position on an issue, or explain such a position, and thus may constitute the `working law' of an agency" which Congress intended by FOIA to make accessible to the public. Taxation With Representation Fund v. IRS, 646 F.2d 666, 677 (D.C.Cir.1981). Thus, in general, predecisional communications are likely to qualify as privileged and "communications made after the decision and designed to explain it" are not. NLRB v. Sears, supra, 421 U.S. at 151-52, 95 S.Ct. at 1516-17.
In Coastal States, supra, 617 F.2d at 866, this court cited "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency" as examples of predecisional deliberative materials privileged under Exemption 5. The designation of the documents here as "drafts" does not end the inquiry, however. Coastal States forecloses the Agency's argument that any document identified as a "draft" is per se exempt. Even if a document is a "draft of what will become a final document," the court must also ascertain
FOIA imposes on the Agency the burden "to sustain its action" in withholding documents. 5 U.S.C. § 552(a)(4)(B). The Agency must thus carry the burden of establishing that documents contain "the ideas and theories which go into the making of the law" and not "the law itself," Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708 (D.C.Cir.1971). This involves showing "what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States, supra, 617 F.2d at 868. To establish that documents do not constitute the "working law" of the agency, the agency must present to the court the "function and significance of the document[s] in the agency's decisionmaking process," Taxation With Representation, supra, 646 F.2d at 678, "the nature of the decisionmaking authority vested in the office or person issuing the disputed document[s]," id. at 679, and the positions in the chain of command of the parties to the documents. Id. at 681.
The procedures by which an agency must ordinarily make such a showing were defined in Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). "[T]o allow the courts to determine the validity of the government's claims without physically examining each document," Coastal States, supra, 617 F.2d at 861, Vaughn required that claims of exemption be supported with specific explanations. The concern in Vaughn was that unassisted court examination might be prohibitively burdensome. "In theory, it is possible that a trial court could examine a document in sufficient depth to test the accuracy of a government characterization." Vaughn, supra, 484 F.2d at 825. But particularly where many documents are involved, "it is unreasonable to expect a trial judge to do as thorough a job of illumination and characterization as would a party interested in the case." Id. Because the party seeking disclosure is ignorant of the contents of withheld documents and a court may be unable to undertake an exhaustive in camera review, Vaughn required that an agency justify withholding of documents through itemized and indexed explanations. Otherwise, the burden of justification would be imposed on the court. As Vaughn explained,
484 F.2d at 825-26.
Here, however, the district court voluntarily assumed, through approval of the stipulation, the obligation of determining from the documents themselves and the "position papers" whether the documents were exempt. Further, the judge had accepted materials submitted by both parties in connection with their summary judgment motions on the GCM, and these were included in the record which she had before her. Because, in addition to approving the stipulation, she considered all the documents together and rested her decision with respect to the drafts on the "record" evidence, Arthur Andersen, Inc. v. IRS, supra, 514 F.Supp. at 1177, the issue before us is not whether the Agency satisfied the obligation imposed by Vaughn to specifically explain its position but whether the record evidence shows that the documents were part of a
The deliberative process from which a proposed revenue ruling emerges is described in the affidavit of Jerome Sebastian of the IRS Office of Chief Counsel,
In camera review of the documents supports this description of the process. On their face there appear the number, identities and titles of the various persons in successively higher positions to whom the drafts were submitted for "approval" and the alterations these persons made in the text of the background note and revenue ruling. Thus, the flow of the documents was from subordinate to superior. Because approval was required at each higher level, all the participants up to the Commissioner were without authority to make a final determination. The Sebastian affidavit's description of the process complements the documents to adequately (albeit barely) establish their predecisional and deliberative nature. A comparison of the successive drafts with each other and with the final revenue ruling reveals no policy or reasons explained in these drafts that were not contained in the ruling ultimately published. The inference we draw from this is that these documents could not and do not serve as agency "working law," providing substantive guidance in future decisions. Andersen offers no evidence to the contrary. This contrasts markedly with the documents ordered released in Taxation With Representation, supra, 646 F.2d at 682, which (as revealed through discovery) were indexed, compiled, and consulted as sources of agency law by IRS employees. In this case, there is neither evidence nor a logical inference to be drawn from the documents that they would be so consulted. Nor, in foregoing discovery, can plaintiffs impose on the IRS the obligation to account for the ultimate disposition and use of the disputed documents. It is enough in the context of this case that the uncontradicted evidence shows the documents to be predecisional and deliberative, and thus eligible for Exemption 5 treatment. Cf. Pies v. IRS, 668 F.2d 1350, 1354 (D.C.Cir.1981) (draft proposed regulations and memoranda exempt under Exemption 5); Falcone v. IRS, 479 F.Supp. 985, 989 (E.D.Mich. 1979) (draft revenue rulings and Staff Comment sheet protected by "privilege for deliberative process materials").
The case is remanded to the district court with directions to enter judgment for the defendants.
5 U.S.C. § 552(a)(2)(B).
Treas. Reg. § 301.6110-2(g).