National Wildlife Federation v. United States Forest Service

FEDERATION, NATIONAL WILDLIFE

Plaintiff-Appellant, SERVICE,

UNITED STATES FOREST

Defendant-Appellee.

No. 87-3552. Appeals,

United States Court

Ninth Circuit.

Argued Sept. 1987. and Submitted and Remanded Jan. 1988.

Vacated

Resubmitted Oct.

Decided Nov.

1H5 WALLACE, Judge: Circuit (Na- Federation National Wildlife) appeals from the district tional summary judgment fa- entry of court’s Forest Service of the United States vor Service) re- (Forest on Wildlife’s National pursuant disclosure of documents quest for (FOIA), Act Freedom of Information pur- jurisdiction 552. We have 5 U.S.C. § 1291, and we affirm. to 28 U.S.C. suant § I copies of sought cer- National Wildlife documents from tain internal (1) Service, working to the FOIA: pursuant National of the Wallowa-Whitman drafts Plan), (2) (Forest working Forest Plan impact statement an environmental drafts Plan, EISs) (draft relating to the Forest drafts, which aré “previews” of the criticisms, comments, recommenda- Management Plan- by the Land tions made Washington, (Washing- D.C. ning Office Office). Asserting that all of these ton “predeeisional,” For- documents were any of them refused to release est Service FOIA, (b)(5) U.S.C. 5). 552(b)(5) National Wild- (exemption § through available requests pursued life its channels, unable was administrative any of the documents. procure withheld complaint filed a Wildlife then National Court. There- States District in United voluntarily after, re- Forest Service Upon of these portions documents. leased summary judgment, for cross-motions magistrate. Pur- to a presented case was parties, the stipulation by both suant to the identical who had decided magistrate, pending then be- in a different case issue Axline, Re- Natural Western Michael court, denying order entered an fore this Or., plain- Clinic, Eugene, for Law sources request doc- National Wildlife’s tiff-appellant. appealed then This order uments. was Atty., Kobbervig, Asst. U.S. D. Judith court, was consolidat- time it at which this Portland, Or., Or., for defendant- Dist. case, Holistic Cascade pending ed with appellee. States v. United Consultants Economic and 84-4292. Nos. 84-4095 Forest Service. we reversed disposition, unpublished In an the district both cases and remanded findings specific to make orders court with WRIGHT, WALLACE Before these doc- any portions whether PREGERSON, Judges. Circuit exists). Hence, inquiry in this decision our released consistent with uments could be reviewing the 767 F.2d 931 case is limited to district exemptions of FOIA. judgment F.2d 933. court’s for clear error. See id. and 767 standard, only if Under this we will reverse remand, magistrate reviewed On and firm convic- we are left with a definite findings and recom- issued documents and tion that the district court has erred. portions from exempting some mendations Gypsum United States v. United States ordering release others. disclosure but 364, 525, 541, Co., 333 U.S. 92 Wildlife, by National Following objections (1948); L.Ed. 746 v. United States Johnson court conducted a review the district Service, (9th 1464 Postal 756 F.2d release of some and ordered Cir.1985). addition, In material. additional factual the Forest Ser- district court ordered the remaining por- the withheld

vice to review A. other factual material tions and release from segregated agencies that could be make The FOIA mandates so, did material. The Forest Service public inspection for a broad available conducted an- whereupon the district court information, including range agen- documents, this time other review of cy’s organization, general methodology, concluding no other factual ma- there were rules, procedure, rules of substantive reasonably segregable terials that were opinions, policy in- and statements of materials. National from deliberative terpretation adopted by that have been timely appealed. 552(a). FOIA, agency. 5 U.S.C. § however, specifically catego- exempts nine disputed Forest doc- Because the Service ries of documents from its otherwise broad properly uments had not been sealed and 552(b). requirement. disclosure 5 adequate U.S.C. appeal, certified for we lacked an § one a decision. There- Unless documents fall within record which base fore, specific exemptions and remanded nine we vacated submission disclosure identify FOIA, specifically requirement to the district court to pre- the documents reviewed in camera and the public inspection. sumed to be available for released, portions not that were and to seal 552(c) (“This 5 section does See U.S.C. § certify the documents for our review. withholding not authorize of information or court, compliance by After the district we availability pub- limit the of records to the appeal this for decision. resubmitted lic, except specifically stated in this section.”) added). Moreover, (emphasis

II proof agency burden of is on the “[t]he reviewing judgment exempt court’s show that the documents are district FOIA, duty “must determine under we its to disclose.” Indus- Willamette judge adequate States, whether the district had an tries v. 689 F.2d 868 United and, (9th Cir.1982). factual for his or her decision” if basis so, we “must determine whether the deci As the basis for its decision to withhold clearly sion erroneous.” below was documents, disputed the Forest Service Scientology Church v. United States exemption exempts relies on “in- Department Army, 611 F.2d ter-agency intra-agency or memorandums (9th Cir.1979) (Scientology). 742 or letters which would not be available [sic] judge properly party

Because the district law to a other than an inspected litigation agency.” the documents involved in this with 5 U.S.C. camera, not, 552(b)(5). parties case exemption, do Pursuant to this § not, reasonably dispute could that the first Service invokes “deliberative prong process” privilege, of the test is satisfied. pub- See id. which shields from (concluding that where a trial court lic disclosure inter-agency confidential properly policy. reviewed contested documents in memoranda on matters of law camera, adequate an factual for Department basis the See Health and Wolfe

1H7 (D.C. objective Services, therance of this the courts have 839 F.2d Human government Cir.1988) (en banc) The decisive allowed the to withhold memo- (Wolfe). advice, containing opinions, whether the re randa recom in this case is thus issue subjective analysis.” mendations and portions of the draft For Id. maining withheld (citation omitted). at 1419 Plans, EISs, can “previews” Given the under est lying purpose of privilege, this it part of the Service’s is no sur be considered prise “[fjactual thereby triggering material that process,” does not “deliberative reveal the pro

tected exemption.” this CIA, Paisley v. (D.C. Cir.1983). B. qualify To C. a doc process” privilege, the “deliberative contends, National Wildlife how or “predecisional” ument must be both ever, qualify exemption that “to under agency poli adoption of “antecedent predeci only the documents must not be (2) “deliberative,” meaning “it cy” and deliberative, sional and also con [must] process by actually related to the must non-binding advisory and tain recommenda policies are formulated.” Jordan v. which regarding policy: opinions law or or tions Justice, 591 Department United States of regarding recommendations facts or conse (Jordan). (D.C. Cir.1978) 774 exempt.” quences of facts ... [are] recognize that the requirements These twin magistrate, interpretation The whose privilege is to underlying purpose of this court, adopted by law was the district de of the consultative functions “protect[] impose requirement clined this third on maintaining the confiden government by question 5. Because the of advisory opinions, recommenda tiality of requirements apply what to a disclosure tions, part comprising and deliberations question exemption under the FOIA is a governmental decisions a which law, See, we review this issue de novo. policies are formulated.” Id. at 772. Scientology, 611 F.2d at 743-44. e.g., maintaining confidentiality of the By magistrate rejected National Wild The among agency occurs give-and-take that suggested rea life’s additional test for two policy, the in the formulation of members First, he that National sons. observed process privilege exemp deliberative imposing had cited no cases this Wildlife encourages open frank and discus tion 5 Second, requirement third and, hence, ideas, improves the sions of that, effect, National Wildlife’s he stated decisionmaking process. See United “argument require disclosure of the would Corp., 465 U.S. States Weber Aircraft facts, regarding processes 802-03, 1488, 1494, 79 L.Ed. 104 S.Ct. Justice, Department Ryan 617 [v. (1984). impossible to 2d 814 would be “[I]t (D.C. Cir.1980)(Ryan),] does not F.2d 781 legal poli or any frank discussions of have Although National dis allow.” writing writings cy if all such matters reason, mag putes the first we believe subjected public scrutiny.” to be were merits, however, The istrate was correct. Agency Protection Environmental magistrate’s properly focused 73, 87, 827, 836, Mink, 35 410 U.S. 93 S.Ct. second reason. (1972) (Mink) (citing Rep. S. L.Ed.2d magis- (1965)). challenges the As National Wildlife Cong., 89th 1st Sess. 9 No. argues that reading Ryan. It De trate’s stated in Julian v. United States we (9th Justice, factual matters to be withheld Ryan F.2d 1411 allows partment — reveal the -, only their disclosure would Cir.1986), when aff'd, U.S. discus- (1988), predecisional policy “Exemption 5 substance 100 L.Ed.2d formula- National Wildlife’s prevent disruption of a sions. Under was created to ideas, requirements for the “delibera- opinions, and tion of the advice free flow fall privilege, documents can agencies process” within concern tive frank discussions categories: factu- possible In fur- into one of three ing policies programs. part of the must be a direct deliberative, containing “non- document al; but not it makes rec- process in that regarding law or binding recommendations containing expresses opinions on or ommendations policy”; and deliberative way on law Put another non-binding legal policy recommendations or matters. such in the third policy. Only a or must ... be ... [it] privilege. qualify for the category would give-and-take—of Wildlife, however, points to no National itself the decision cess— articulating tripartite such a explicitly case made. agency documents. categorization of however, not, a statement read such We do a distinction recognized has Supreme Court document, any por- or suggesting that reflecting deliber- only “materials between thereof, recommen- must itself contain tion the one processes on policy-making or ative qualify as “deli- policy law or dations on investigative hand, factual, purely Therefore, reject National we berative.” Mink, 410 U.S. on the other.” See matters suggested tripartite analysis; we Wildlife’s added). (emphasis at 836 S.Ct. distinguish between deliberative will not reflecting deliberative “materials Whereas contain do and do not documents which within ex- policy-making processes” fall “non-binding regarding recommendations consisting only of emption “memoranda policy.” law or factual compiled purely material or factual memo- contained in deliberative material D. from its context would randa and severable must decide whether by When a court inspection for generally be available” case, 87-89, exemption applies complicated in a at 836 5 public. the at 93 S.Ct. Id. 3, IBEW, than added); analytical tool see also Local we believe better (emphasis 1177, NLRB, determining the material merely 845 F.2d 1180 whether v. AFL-CIO Cir.1988) (2d (“Purely essentially factual material not or factual itself was deliberative process reflecting agency’s deliberative focus on wheth the should be used: we should Court, moreover, protected.”). part of the question is not er the document in is a rejected an Congress that had pointed out The District of Co process. deliberative exemption of 5 that would early exemp version emphasized has lumbia Circuit required disclosure of have protect simply intended to “[a]ll tion 5 “was factual records,” Mink, on Government material, material the delibera deliberative but also 837, quoting at S. 410 at U.S. agencies.” process tive of Montrose Cong., 7 Rep. 88th 2d Sess. No. Train, Corp. Chemical v. of California Hence, original). contrary to (emphasis in (D.C. Cir.1974) (Montrose 491 F.2d 71 suggestion, “opinions or Wildlife’s National Hence, Chemical) added). (emphasis even regarding or conse- facts recommendations factual, if if the content of a document automatically quences of facts” are not expose of the document would disclosure un- ineligible exemption for from disclosure decision-making process pub “the itself” exemption 5. der scrutiny by revealing agency’s lic analysis of the multitudi “evaluation addition, Wildlife has cited In National facts,” none nous the document would have found no case that no case and we exempt from disclosure. Id. at theless be explicit requirement that a doc supports an words, is con 68. In other the document advisory recommendations ument contain pro sidered to be “deliberative must relate to deliberations “law “actually long as it is ... related cess” as policy.” have found a statement that We policies are formu process by which must relate to suggests that a document Jordan, (emphasis F.2d 774 lated.” 591 in the policy” or to be “deliberative” “law added). Accordingly, pro Rosen, 523 F.2d place. Vaughn first In v. privilege has been held to cover all Cir.1975), cess (D.C. District of 1144 documents, “recommendations, pro suggested in dictum that Circuit Columbia subjective posals, suggestions and other exemption 5 “deliberative” satisfy personal opin- which reflect the documents requirement, a

1H9 quiry into policy ignores a semantics debate that rather than ions of the writer objective as well as documents that the ultimate agency,” 5 prematurely “inaccurately reflect safeguard process is to would deliberative agency.” Coastal disclose the views agencies, paperwork generated not the Corp. Department Ener- v. States Gas process. the course of that See Dudman Cir.1980). (D.C. 617 F.2d gy, Corp. Department Communications Force, (9th the Air 815 F.2d Thus, Circuit the District Columbia Cir.1987) (Dudman Communications). interpreted exemption 5 to repeatedly has Documents need not themselves “deli- be that would reveal the protect documents berative,” in the sense that make non- agency officials make process binding policy, on recommendations law or determinations, whether or not the these qualify in order to for themselves contain facts circumstances, privilege. cess “In some regarding non-binding recommendations even material that could characterized policy. Department law and Russell (D.C. expose as ‘factual’ would so Force, delibera- Air instance, Cir.1982) (Russell), the court that it must tive be covered process] privilege.” Wolfe, “not recognized 5 covers [deliberative which are themselves only communications F.2d at nature, also all communi deliberate “process-oriented” Under this or “func- which, revealed, expose if would cations adopt, tional” test that we documents con- process of an public view taining nonbinding recommendations on and, therefore, if, applies “dis agency,”; policy law or would continue to remain purely factual material closure of even exempt from disclosure. Factual materi- decision-making agency’s would reveal an als, however, exempt would likewise be Central, Data process.” Accord Mead they disclosure to the extent from Department Inc. United States processes of decision- reveal mental 242, (D.C. Force, 256 566 F.2d Cir. Air Communications, makers. See Dudman 1977). “process-oriented” in Under such a 1568; Industries, 815 F.2d at Lead 610 report quiry, “a does become 85-86; Chemical, 491 F.2d at Montrose process simply it because words, F.2d at In other 67-68. whenever only person facts which the contains those unveiling of factual materials would be report Play material.” making the thinks “publication to the of the eval- tantamount Enterprises, Department Inc. v. boy analysis of the multitudinous uation and Justice, (D.C. Cir.1982). 935 677 F.2d agency, the deli- facts” conducted either the disclosure of the manner Where process privilege applies. berative Mont- selecting presenting facts ex would Chemical, rose 491 F.2d at process, or pose the deliberative where analyzing of ex- approach This claims “inextricably intertwined” facts are with exemption looks to emption under is “policy-making processes,” the material 790; purpose of the deliberative underlying exempt. Ryan, 617 F.2d at Lead Association, OSHA, privilege, 610 is consistent with the Inc. v. Industries (2d Cir.1979)(Lead Industries); “flexible, approach” to ex- F.2d common-sense (D.C. David, approved by emption Soucie 5 that has been Cir.1971). Mink, Supreme 410 U.S. at Court. See that, recognized The Court foregoing in- reading of the cases Our choosing language in scope that the of the deliberative forms us sensibly discarded a wooden Congress not turn on wheth- process privilege should have meant disclo- formulation that could the contents of a document er we label manifestly private and confiden- sure of opposed “factual” as to “deliberative.” simply be- policy recommendations tial Chemical, 491 F.2d at 67-68. See Montrose containing also them cause the document judgment our legal A standard that ties data. That happened to contain factual allegedly solely type of information taken, however, in- decision should not be in a transforms our secreted document EISs. We Plans and draft exemption draft Forest equally wooden an embrace “previews.” withholding factual ma- discuss the will then permitting the discovery available terial otherwise in a memo- placed it was

merely because A. law, policy, or matters randum with the two Plans and The two draft Forest Exemption us that appears to opinion. It These doc- predecisional. EISs are draft public’s access to that the contemplates working subject merely drafts uments are governed by will be memoranda internal form, they are revision. Once flexible, ap- common-sense the same them will make available governed private the Forest Service long has proach that only question in- concern- public. such documents discovery of parties’ draft EISs with Government Forest litigation ing the draft Plans volved reveal the would agencies. is whether disclosure processes of the Forest Ser- Id. vice. excluding “opinions Categorically Plans and reviewing the draft Forest regarding facts or recommendations EISs, in mind that re- we bear consequences of facts” among numerous com- compromise inconsistent urges, is flect a as National Appeals Na- and Court of of the Wallowa-Whitman Supreme peting Court uses with (Forest). realities of Plan ignores the The Forest precedent. It also tional Forest government judgment policymaking. represents Decisions Service’s Poli a vacuum. agencies are not made to strike appropriate balance as to the address concrete formulated to cies are conflicting placed on among the demands competing pol several Which of problems. These con- finite the Forest’s resources. requires adopt question icies to from such varied flicting demands stem and their assess facts policymaker to graz- production, livestock uses as timber Opinions on consequences. anticipated recreation, conserva- resource ing, natural consequences of those facts facts and their tion, to name but preservation, and wildlife mill. policymaker’s grist form the for the understanding the Only first a few. great con as to Each the Forest Service’s ultimate ends to which impor relevant and of facts stellation adequate- are directed can we deliberations implica of the tant and each assessment disputed portions of ly judge the whether suggests a different facts tions of those re- Plans and draft EISs the draft Forest agency. Before the course of action process. flect this deliberative decision, policymaker the arriving a final regarding his or her may alter likely or the conse facts are which relevant from the draft pages withheld facts, Tentative or both. quences of these following materi Forest Plans contain the undergo massive revisions policies may (1) anticipated sources of conflict als: variables, of these reassessment based on a of the Forest among the various users may decide that during agency resolving these issues deemed vital reason projections are not initial certain con conflicts; (2) environmental likely consequences of a likely or that the able Forest; (3) certain of the sequences over- or uses have been given course action expect activities Subjecting policymaker projected a levels of various underestimated. such of the Forest implementation on the basis of public criticism ed from pro precisely Plans; (4) analyses is what of the tentative assessments cost-benefit intended to process privilege Plans; (5) comparisons is be posed deliberative Forest prevent. given a activi expected tween the levels and the estimat Forest Plans ty under the

Ill activity maximum level of ed sustaining; pro capable of Forest is present- applying this to the case test corridors, plans, timber sale utility posed appeal, will review first ed in this we

H21 statements, al made Forest Service em- sched- plans, and tentative ownership land assign evaluating ployees, identify priority monitoring and ules for objectives; and plan’s the issues deemed relevant to the formu- of the achievement those areas of (7) opinions policy. as to lation urgent problems and most presenting Projected levels of various activities ex- purposes of re- priority for relative pected implementation of the Forest action. ceiving remedial Plans, the estimated costs and benefits as- the tentative represent These materials activity, each and estimates sociated with and recommendations opinions capacity maximum as to the Forest’s matters instrumental employees on Service sustaining activity similarly opin- are each governing the policies to the formulation figure heavily in the formulation ions that com- resources to of the Forest’s allocation policies. While these of Forest Service regarding which uses. Statements peting opinions opinions might be characterized as consider employees Forest Service issues facts, consequences on facts or the such priority should urgent, and what the most distinction, previously, as discussed a we issue, well as recom- each as assigned to the touchstone for determination of the not issues the various as to how mendations long applicability 5. As as resolved, clearly opinions are can best be opinions these reveal the issues that relating to the deci- and recommendations important Forest Service considers Recommendations on sionmaking process. telling to the Forest vide clues as Service’s are particular a issue to deal with how best addressing action in proposed course of of the deliberative the essence themselves conflicting demands on the Forest’s re- recommendations long as such process. So sources, they are as much a policy, it is agency final represent do opinions pure process as on they fall within clear that policy. Wolfe, matters of law or See among the Included process privilege. (exemption applies if con- F.2d at 774-75 recommendations agency’s tentative used requested materials are text which problems con- deal with the various how to proposals reveal the fact that have would plans re- proposed are fronting the Forest timing agency’s made or the been sale, corridors, timber lating utility action); Industries, 610 F.2d at 84-85 Lead ownership. Again, such recommended land studies, containing feasibility cost (reports protected are under ex- of action courses objective summaries analysis, and benefit long represent do not emption 5 so requiring the author to draw of evidence assign identify and action. To weigh the are and to evidence inferences very lies at the to relevant issues priority process). part of the deliberative decisionmaking process. Be- heart of the par- developed to address policies cause first policymaker must problems, ticular Plans, which the draft Forest Unlike require atten- evils to specify the believed proposed particular a more or less on focus agency member’s identification tion. An action, focus two draft EISs course necessarily an important issues the most plans, of alternative comparison upon the signifi- weigh that opinion will —an objectives and emphasizing different each appropriate of an cantly in the formulation activities priority to different giving mere fact that the action. The course of por remaining undisclosed Forest. The area of believes that some Forest Service contain the two draft EISs tions of the worthy of some problem creates a concern (1) of the following materials: discussions policy reflects a regulation itself sort of employees Forest Service issues that the may “more sensitive and judgment that be during plan require resolution believe concern- than the later decisions important (2) uses of the the various ning process; of the precise extent and nature ing the has identi Forest Service Forest that the 839 F.2d at 775-76. regulation.” Wolfe, intends to Service the Forest therefore, fied and that hold, that We alter- various during planning; consider applies predecision- privilege judg- policy and they expose the editorial For- by the Plans considered Forest native their prior to ment of the decisionmakers Service, anticipated environmental est Thus, can- National Wildlife final decision. benefits, activi- projected impact, and not they that are reasonably contend not each alterna- with ties, associated and costs Dudman Communica- See “benchmarks,” deliberative. tive; (4) discussions and 1568; Russell, tions, F.2d at estimates Service’s the Forest Instead, these it that maintains given activity that a level of the maximum doc- predecisional not previews were sustain, are used can and rather, uments, but, final statements alterna- efficiency of each to measure policy. Forest Service full eco- achieving the Forest’s plan tive potential. and aesthetic nomic Washing- magistrate found that the The recommenda- previews “contain ton Office from the withheld the materials with As comments, binding are not and tions Plans, of the portions these draft Forest adopted this court directives.” district opinions and rec- represent the draft EISs finding, which we now review factual employees of Forest Service ommendations error. clear as contributions that will serve on factors They con- decisionmaking calculus. in the that challenging the conclusion Forest “give-and-take” stitute the law,” “agency binding previews are processes represent the mental and Service correctly points out that National Wildlife considering alternative agency in agency’s apply to an exemption 5 does not settling a final prior of action to courses policy and in- opinions, statements Hence, deli- within the also fall plan. definitively adopted terpretations process privilege berative having agency, any and other and of law.” NLRB “the force effect that National Wildlife the extent To 132, 153, Co., Sears, 421 U.S. Roebuck & request to uncover through its FOIA seeks (1975). 1504, 1517, 44 L.Ed.2d findings, discrepancies any between previews argument that the support To its between projections, and recommendations represent binding with “force directives pre- Plans draft EISs Forest and law,” cites effect of National Wildlife person- Forest Service pared lower-level testimony portions deposition certain actually adopted in the final those nel and Congressman Weaver of four letters to published by the For- Plan and EIS which, previews argues, it show that Service, probe the it is attempting est agency superi- served as “directions of the deci- policy judgment editorial comply su- with the ors to subordinates pub- Materials allow the sionmakers. obligations periors’ view of judg- the predecisional lic reconstruct statute,” plans the draft ... inim- are no less inents of the administrator altered to conform to would have encouraging goal 5’s ical to these directives. decisionmaking than materials uninhibited revealing her mental explicitly his or argu- presents two The Forest Service Communications, See Dudman cesses. First, argues that response. it ments 1568-69; Russell, 682 F.2d at F.2d at to “direction” in the Weaver the references 1048-49. pre- anything in the letters relate not to themselves, appar- but rather to an views

B. directive re- unrelated Forest Service ently officials to conform quiring Forest Service challenging In district court’s the analyses to Ninth Circuit’s Washington previews the ruling that the Office Block, (9th F.2d 753 FOIA, in exempt National from the were California Cir.1982),by including roadless land areas. argue previews does not that the Wildlife letters Passages from several of the refer- process. the not of were roadless areas seem to Indeed, previews ring specifically to to the extent these that Other references changes support this contention. provide comments and recommend EISs, are at best in the letters to “direction” and draft in draft Forest Plans the

H23 deed, are mere many of the comments equally to the and could relate ambiguous, Washington in Office re- questions from the or to comments directive land roadless meaning purpose of the word of a sec- mere use the garding The and previews. the thus does letters asking in the Weaver certain considera- “direction” tion or whether clearly district court that the the draft- show into account not tions were taken did not finding previews in that the foregoing are erred comments as the ers. Such force “with the binding nature, directives not, contain of very indicative by their law,” that it is not clear since effect of and binding “agency of law.” On statements letters to in the referred “directions” merely contrary, these are comments in contained to the comments relate even recommendations, queries and opinions, previews. Forest Plans improving the draft aimed at EISs. and draft response is second Forest Service’s The in the contained the recommendations that analysis of Equally important to our serving merely nonbinding, are previews any indica- previews is the those absence Forester, who Regional advice that, incor- even if the Forest Service tion contention This the final decision. makes porated all of the recommendations the affida- by portions of supported both is of the Wash- addressed all concerns planning director the Forest Service’s vit Office, ington Forest Plans draft one of the by portion a Hargreaves and EISs will have attained draft form. re- Wildlife letters. National Weaver that, receiving upon a There is no evidence recommenda- practice such sponds that documents, the Wash- draft of these new followed, should and we always are tions mind, change its ington Office is not free than to reality rather practical look changes, further or to recommend determining wheth- technicalities in cedural failed to certain opine that amendments made; Na- been a “final decision” has er criticisms, or to raise reviewer’s satisfy the urges us to follow tional Schlefer altogether new concerns. 233, 237-38, 241 States, 702 F.2d United therefore, conclude, that the district We Cir.1983) advisory opinions to (finding (D.C. finding clearly not erroneous court was law and have force definitive previews do Washington that Office always practice the “advice” where final, binding not constitute statements followed). in the record to There is little re- statements thus agency policy. These al- Regional Foresters whether indicate privi- main within Washington Office’s comply with the ways exemption 5. lege of matter, Har- practical as a “comments” that do suggests affidavit greaves’s them in all cases. necessarily follow IV the sealed inspection of in camera Our conclusion, the withheld we In hold moreover, us that convinces

previews, draft of Forest Service’s portions statements that documents contain these its deliberative EISs and draft reveal Plans Wildlife’s National inconsistent with are and, therefore, fall within processes, binding, final state- they embody claim exemp- privilege of process” “deliberative con- previews agency law. ments hold that further of the FOIA. tion 5 We Washington comments general tain prede- are previews Washington Office completeness of quality on the Office to ex- cisional, also entitled and are thus draft EISs. Forest Plans and withholding privilege. emption 5’s nothing more Many of these comments AFFIRMED. relating comments mundane editorial than precision organization, clarity, Judge, PREGERSON, Circuit express comments language. Still other concurring: given section opinion that reviewer’s Judge reached in the result I concur ambiguous or incom- Plan is was court case district this Wallace. needs to be suggesting what without plete, concluding that clearly erroneous In- not the draft. improve specifically done deciding release materi- properly with- tion whether to documents were contested (b)(5) though requested of the Freedom under Even als FOIA. held under (FOIA), 5 U.S.C. majority, Information Act this result is not intended 5). 552(b)(5) portions of (exemption The opinion pro- misconstrued to could be § EISs, Plans, draft Forest the draft any govern- virtually from disclosure tect factual, were not “previews” question that not constitute a ment document does in nature. rather were inconsistent final decision. Such a result is analyses of and tentative They represented purpose the stated of FOIA: with of concern to the opinions issues about “a formula which encom- vide workable the decision- aspects of interests, balances, passes, protects Service — all I by exemption 5. making process covered emphasis respon- fullest yet places on the however, the lan- separately, because write Mink, 80, sible disclosure.” U.S. than guage in the is far broader 813, 3). S.Rep.No. p. (quoting S.Ct. at 832 decide this necessary appropriate all in mind that secret We should bear applies a test devel- majority case. government is abhorrent to democratic val- oped in line of District of Columbia Cir- judgment Congress’ ues. FOIA reflects exempts factual materials cuit cases people right that the have a to know how they “from disclosure to the extent government actually functions. processes of decision- reveal the mental (citing Majority opinion at makers.”

cases). majority’s so-called “function-

Under test, exemp- up by

al” FOIA swallowed plain pur- contrary a result

tion

pose of the Act. FOIA is a disclosure permit access to

statute which “seeks to long information shielded unneces- official CO., MESA VERDE CONSTRUCTION sarily public attempts from view and Plaintiff-Appellee, right judicially public create a enforceable v. possibly to secure such information unwilling official hands.” Environmental NORTHERN CALIFORNIA DISTRICT Mink, Agency v. Protection 410 U.S. LABORERS, COUNCIL OF 827, 832, (1973). 80, 93 S.Ct. 35 L.Ed.2d 119 Defendant-Appellant. reason, exemptions must For this the Act’s Indeed, MESA VERDE CONSTRUCTION narrowly as the be construed. Sen- COMPANY, Plaintiff-Appellee, Report explains, FOIA’s ate Committee philoso- purpose general is “to establish a infor- phy of full disclosure unless CARPENTERS 46 NORTHERN CALI exempted clearly delineat- mation is FORNIA COUNTIES CONFERENCE statutory language_” S.Rep. No. ed BOARD, Defendant-Appellant. p. n. 6. 85-1665, Nos. 85-2074. might test read to The “functional” agency to allow an withhold Appeals, United States Court of long purely that are factual so Ninth Circuit. policies “related to the Argued En Banc and Submitted Majority opinion are formulated.” at 1118 March Depart- Jordan United States (quoting Justice, (D.C. ment 591 F.2d Decided Nov. Cir.1978)). nearly everything Because an agency generates related to is somehow process, applica- careless

tion of the “functional” test would afford

government agencies unrestrained discre-

Case Details

Case Name: National Wildlife Federation v. United States Forest Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 14, 1988

Citation: 861 F.2d 1114

Docket Number: 87-3552

Court Abbreviation: 9th Cir.