TATEL, Circuit Judge:
Seeking to learn which federal agencies submit materials to Congress without prior clearance by the Office of Management
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 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:
Adina H. Rosenbaum Decl. Ex. A at 1.
In response, OMB identified two documents but refused to release them, claiming
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thirteen of the fourteen documents — document 1 and documents 3 to 14 — represent the current version and various outdated versions of a memo to OMB staff from OMB's Assistant Director for Legislative Reference.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, 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:
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
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.
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. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal quotation marks omitted). The Supreme Court has emphasized that "disclosure, not secrecy, is the dominant objective of the Act." Id. at 361, 96 S.Ct. 1592. 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, 96 S.Ct. 1592. 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 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 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,"
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 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 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
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 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 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" —
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 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 881, 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.
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 interagency referral process. Dissenting Op. at 878. As noted above, however, on their face the documents strongly suggest that they do in fact represent the list of agencies allowed
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 879. 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 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, 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
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 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 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
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.
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
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.
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
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 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,
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.
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 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.
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 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 871 (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 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
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 873. Again the 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 873 (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:
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 873 (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.
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.
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 at 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
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 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 872. 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 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 874. 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
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 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 873. 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 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 Marshals Serv., 494 F.3d 1106, 1113 (D.C.Cir.2007).
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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 874. 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