Supreme Court Rules in Exemption 5 Case
Information Act case that Exemption 5 of the FOIA cannot be
extended to protect all confidential communications between
the Department of the Interior and the Indian Tribes that it deals
with as part of the federal government's special "trust
relationship" with Native American tribal organizations.
case of Department of the Interior v. Klamath Water Users
Protective Ass'n, 121 S. Ct. 1060 (2001), that the "threshold"
requirement of Exemption 5 -- that the records in question first
must be "inter-agency or intra-agency memorandums or letters" -- was not satisfied for seven records exchanged between the
Department of the Interior and several Indian Tribes located in
the Klamath River Basin. Consequently, the Court ruled that
those records, which dealt with agency decisions on water
allocation and had been withheld from competing water users
under the attorney work-product and deliberative process
privileges, must be disclosed.
prevailed in its Exemption 5 position, but subsequently it did not.
At the district court level, Exemption 5 was found satisfied in
light of the agency's special "trust relationship" with the Indian
Tribes involved. The Court of Appeals for the Ninth Circuit,
however, ruled in a 2-1 decision that the Tribes' "direct interest"
in the agency's water-allocation decisionmaking disqualified
them from Exemption 5 protection as a threshold matter. See
Klamath Water Users Protective Ass'n v. Department of the
Interior, 189 F.3d 1034, 1038 (9th Cir. 1999); see also
Update, Vol. XX, No. 1, at 3.
but it did so on a distinctly narrower ground. It began its
analysis of Exemption 5's threshold requirement with the
observation that it is "no less important" than the rest of the
exemption. 121 S. Ct. at 1066. It then recognized that several
courts of appeals have found Exemption 5's threshold to be
satisfied in cases involving an "outside consultant" of one type
or another, and it discussed that well-recognized basis for
Exemption 5 qualification at some length. It observed that such
a consultant, though it need not "be devoid of a definite point of
view," typically "does not represent an interest of its own." Id.
standard to the records before it, though, the Supreme Court
found that those records (or, in effect, the Indian Tribes involved)
failed to qualify on a more precise ground. Having noted that the
Tribes' interests were "adverse" to those of the opposing
association of water users, "owing to [the] scarcity of water" in
the Klamath River Basin, 121 S. Ct. at 1064, the Court
characterized the Tribes as "self-advocates at the expense of
others seeking benefits inadequate to satisfy everyone," id. at
1068. Most significantly, it concluded that
the dispositive point is that the apparent object of the
Tribes' communications is a decision by an agency
of the Government to support a claim by the Tribe that
is necessarily adverse to the interests of competitors.
threshold test rooted in the competition between an "outside"
party and other such parties -- here, between the Tribes and
competing water users -- not the Ninth Circuit's more general
test that disqualified an outside party due to the existence of a
self-interest alone. The Court made it clear that its Klamath
test necessarily went no further than excluding "an interested
party [that is] seeking a Government benefit at the expense of
other applicants." 121 S. Ct. at 1068 n.4. Under that test, the
records (and the relationships between the parties) that were
before the Court simply failed to qualify for protection under
Supreme Court's decision in the Klamath case:
exchanged between the federal government and Indian Tribes in
furtherance of their special "trust relationship" may no longer be
protectible under Exemption 5. It explicitly rejected that
longstanding relationship as a sufficient counterweight to what
it found to be the disqualifying "competitive self-interest" of
such outside parties in this case. See 121 S. Ct. at 1069. Where,
as in Klamath, Indian Tribes act as "self-advocates at the
expense of others," id. at 1068, they no longer can expect to
receive the protection of Exemption 5.
its decision, and thereby implicitly strengthened, the pragmatic
"outside consultant" interpretation of Exemption 5's threshold
language that has long been recognized in many FOIA cases at
the appellate court level. Although the Court ultimately did not
decide Klamath on this basis, such court of appeals decisions as
Hoover v. Department of the Interior, 611 F.2d 1132, 1137-38 (5th
Cir. 1980) (involving reports prepared by outside real estate
appraisers), Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 83 (2d Cir.
1979) (involving feasibility reports prepared by outside
scientists), and also Formaldehyde Inst. v. HHS, 889 F.2d 1118,
1123-24 (D.C. Cir. 1984) (involving critiques of scientific articles
prepared by outside peer reviewers), still stand as sound
precedents for the satisfaction of Exemption 5's threshold
requirement under what in the past has been termed the
exemption's "functional test." See "Initial Considerations"
Subsection of "Exemption 5" Section of "Justice Department
Guide to the Freedom of Information Act."
of another line of such cases -- Public Citizen, Inc. v. Department
of Justice, 111 F.3d 168, 169-70 (D.C. Cir. 1997) (involving
agency consultations with former presidents), and Ryan v.
Department of Justice, 617 F.2d 781, 784 (D.C. Cir. 1980)
(involving agency consultations with senators) -- which it
recognized as being arguably in tension with, but not overturned
by, its Klamath ruling. Significantly, this compelled the Court to
stress that, at bottom, its new test necessarily went only so far
as to exclude from Exemption 5 any "communications to or from
an interested party seeking a Government benefit at the expense
of other applicants." 121 S. Ct. at 1068 n.4 (emphasis added);
see also id. at 1068 ("[A]gain, the dispositive point is" that the
putative "consultant" has interests that are "necessarily adverse
to the interests of competitors."). Thus, those decisions, and
their potential progeny, stand apart from what clearly was
rejected under the Court's bottom-line threshold test.
the viability of protecting certain settlement-related records on
the basis of the "settlement privilege" under Exemption 5 in the
future. This basis for record protection was identified many
years ago, see
at 3-4, and it has
been applied sparingly since then, see
Subsection of "Exemption 5" Section of "Justice Department
Guide to the Freedom of Information Act." The settlement
privilege actually has been applied in court more readily under
Exemption 4 of the FOIA than under Exemption 5, for settlement
records that are sent to an agency rather than from the agency
to an outside party, see id. (citing M/A-COM Info. Sys. v. HHS, 656
F. Supp. 691, 692 (D.D.C. 1986) (applying settlement privilege
under "privilege" part of Exemption 4)) -- and that is something
that remains entirely unaffected by the Klamath decision. As for
settlement records that are sent by an agency to an outside
party, they should fail to qualify at the threshold for Exemption 5
protection only if they run afoul of Klamath's ultimate test -- i.e.,
if they involve a self-interested outside party that is acting "at
the expense of other [such parties]." 121 S. Ct. at 1068 n.4. It
remains to be seen exactly how Klamath might be applied in any
future FOIA case that involves the settlement privilege under
decision will have such a strong impact on the government/tribal
relations of agencies such as the Interior Department that it
necessitates a legislative remedy, as the Supreme Court itself
suggested might be the case. See 121 S. Ct. at 1069-70 & n.7. If
so, then the enactment of an "Exemption 3 statute" may be seen
as a most appropriate legislative response. Such remedial
action by Congress would be much like the legislative response
to a very comparable FOIA problem experienced by the Interior
Department just a few years ago, when two appellate courts
ruled that it could not protect the site locations of endangered
species under FOIA Exemption 2. See Maricopa Audubon Soc'y
v. United States Forest Serv., 108 F.3d 1082, 1087 (9th Cir.
1997); Audubon Soc'y v. United States Forest Serv., 104 F.3d
1201, 1204 (10th Cir. 1997); see also FOIA Update, Vol. XVI, No.
3, at 2. The legislative response to those FOIA decisions was
the enactment of an Exemption 3 statute, see National Park
Omnibus Management Act of 1998, 16 U.S.C.
Supp. IV 1998), one that readily addressed the problem and
already has been upheld in court. See Pease v. United States
Dep't of Interior, No. 1:99CV113, slip op. at 2, 4 (D. Vt. Sept. 17,
that the Supreme Court has issued in more than four years, since
it summarily reversed the Court of Appeals for the Ninth Circuit,
and ruled in the government's favor, in Bibles v. Oregon Natural
Desert Ass'n, 519 U.S. 355 (1997), an Exemption 6 case involving
the protection of mailing lists. During the past four years, the
only other significant action taken by the Court in a FOIA case
was its nullification of a Ninth Circuit decision that had required
the disclosure of classified information, in United States v.
Weatherhead, 528 U.S. 1042 (1999), when that case suddenly
became moot shortly before Supreme Court argument at the end
of 1999. See FOIA Update, Vol. XX, No. 1, at 1. (posted 4/4/01)