Opinion for the Court filed by Circuit Judge WILLIAMS.
Pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1994), Public Citizen seeks access to certain records maintained by the National Archives and Records Administration (“Archives”) and the Department of Justice. The records sought are communications between the two agencies and former Presidents Ronald Reagan and George Bush relating to access to their respective presidential records.
The defendant agencies invoked FOIA’s Exemption 5, id. § 552(b)(5), governing “inter-agency or intra-agency memorandums or letters,” the so-called deliberative process exemption. They argued that because the communications took place as part of consultations called for by the Presidential Records Act, 44 U.S.C. §§ 2201-07 (1994), they fit within the established rule applying Exemption 5 to communications between an agency and an external consultant, when made for the purpose of aiding the agency’s deliberative process. The district court rejected the claim, on the ground that the relationship between the former Presidents and Archives was potentially adversarial and the communications therefore outside the deliberative process exemption. We reverse.
In 1989 private parties brought suit to assure the preservation of Reagan-era records found on the computer systems of the Executive Office of the President and the National Security Council. See generally
Armstrong v. Executive Office of the President,
The second set of records are communications between the same agencies and former President Bush. Archives had taken custody of the electronic records from his administra
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tion when he
left office on January 20, 1993. At the same time, he and Archivist Don W. Wilson signed an agreement (“Bush-Wilson Agreement”) stating that President Bush would “retain exclusive legal control of all Presidential information ... contained on the materials” and setting forth procedures for segregating and identifying Presidential materials.
American Historical Association v. Peterson,
FOIA’s deliberative process exemption protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). We find that communications between Archives and a former President on matters relating to Presidential records fall within this exception.
While Public Citizen is doubtless right that a former President is not an agency under FOIA, see
id.
§§ 551(1), 552(f), records of communications between an agency and outside consultants qualify as “intra-agency” for purposes of Exemption 5 if they have been “created for the purpose of aiding the
agency's
deliberative process.”
Dow Jones & Co., Inc. v. Department of Justice,
First, the former President in this context can hardly be viewed as an ordinary private citizen. He retains aspects of his former role — most importantly, for current purposes, the authority to assert the executive privilege regarding Presidential communications.
Nixon v. Administrator of General Services,
Second, the consultative relationship involved here is not only explicit, cf.
Dow Jones,
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Consultations under the Presidential Records Act are precisely the type that Exemption 5 was designed to protect. If it is to effectively deliberate, an agency may need or want to “enlist the help of outside experts skilled at unravelling [the] knotty complexities” of “problems outside their ken.”
CNA Financial Corp.,
In resisting application of the deliberative process privilege, Public Citizen asserts a series of false dichotomies. Because there are other aspects to the relationship, it says, it cannot be consultative for purposes of Exemption 5. But the consultative relationship is not mutually exclusive with any of the others to which Public Citizen points. At some point, of course, features of the other relationships (above all, a possible future adversary one) might come to eclipse the consultative relationship, but plaintiff has offered nothing concrete to suggest any movement in that direction here.
Public Citizen’s central claim is that the former President has a distinct and independent interest that makes him an adversary rather than a consultant. Similarly, it says that the Presidential Records Act does not establish the type of consultative role protected under FOIA Exemption 5, but rather is designed to “avert disputes or misunderstandings concerning [the former President’s] rights.” Appellee’s Br. at 25. It is clearly true that a former President’s power to assert his rights and privileges, preserved and given specific judicial venue in the Presidential Records Act, 44 U.S.C. § 2204(e), constitutes an independent interest. But consultations under the Act are not just about rights and privileges. The Archivist has “an affirmative duty to make [Presidential] records available to the public as rapidly and completely as possible consistent with the provisions of [the] Act.” Id. § 2203(f)(1). Archives’s Special Counsel for Information Policy explained that in that context there was a need for conversations “to facilitate correct and consistent application of the restriction categories, to maximize rapid disclosure of records to the public, and to ensure smooth and workable procedures for dealing with special access requests.” Supplemental Declaration of Miriam M. Nisbet at 3. The existence of independent presidential interests provides no basis for doubting this explanation.
Public Citizen attacks the government’s reliance on government participants’ description of the subjects of the colloquies, condemning this as “reliance on the subjective perceptions of the government attorneys.” Appellee Br. at 30. But the first step of deciding whether a document is deliberative is to examine the purposes for which it was prepared,
Formaldehyde,
More generally, the potential for an adversary relationship is not enough to negate one of consultation. Doctors, lawyers and other expert advisors may find themselves in litigation as either plaintiffs or defendants against those whom they advise (e.g., breach of contract and malpractice claims), but for all that they are still consultants. Similarly, there is often a possibility of litigation between entities within the executive branch, see Michael Herz, “United States v. United States: When Can the Federal Government Sue Itself?” 32 Wm. & Mary L.Rev. 893, 895-96 & nn.3-11 (1991) (citing various examples of such suits), yet no one has suggested that courts should on this account refuse to apply Exemption 5 to their inter-agency communications.
Public Citizen makes a slightly more focussed argument of the same type, saying that even if consultations under the Presidential Records Act are protected, the records it seeks here were not created pursuant to the consultative provisions of the Act. First, it attempts to distinguish between negotiations concerning “waiver of access restrictions,”- which falls under 44 U.S.C. § 2204(b)(1), and consultations “as to whether a requested record is subject to an access *172 restriction,” which falls under § 2204(b)(3). Only on the latter does the statute mandate consultation. But as one of the benefits of consulting the former President is that he may decide to grant a waiver, thereby mooting the access issue, acceptance of plaintiffs theory would require an artificial and pointless segmentation of the consultative process.
Second, Public Citizen argues that the communications with former President Bush concerned the Bush-Wilson agreement, which, according to
American Historical Ass’n,
Public Citizen also argues that potential adversity between Archives and the former Presidents turns their communications into settlement negotiations. We need not address the applicability of Exemption 5 to settlement negotiations, because the existence of peripheral litigation over the underlying records does not make these agreements “settlements.” Although the Armstrong litigation was in progress at the time of President Reagan’s waiver, President Reagan was not a party to it. Similarly, although the Bush agreement took place in the context of the American Historical Ass’n litigation, Bush was not a party at the time of the agreement. That the consultations may have helped Archives resolve the pending litigation does not strip them of their character as consultations under the Presidential Records Act.
A closing note. The disputed communications actually ran between the attorneys to the former Presidents, on one side, and Archives and the Department of Justice, on the other. Public Citizen makes much of the status of the former Presidents’ lawyers as private citizens. But as the lawyers served solely in a representative capacity, the former Presidents are the relevant actors for our purposes.
Because we find these records protected by Exemption 5, the decision of the District Court is
Reversed.