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DEPARTMENT OF THE INTERIOR ET AL. v. KLAMATH WATER USERS PROTECTIVE ASSOCIATION - 532 U.S. 1 (2001)
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2000
DEPARTMENT OF THE INTERIOR ET AL. v. KLAMATH WATER USERS PROTECTIVE ASSOCIATION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No.99-1871. Argued January 10, 200l-Decided March 5, 2001
The Department of the Interior's Bureau of Reclamation (Reclamation) administers the Klamath Irrigation Project (Project), which uses water from the Klamath River Basin to irrigate parts of Oregon and California. Mter the Department began developing the Klamath Project Operation Plan (Plan) to provide water allocations among competing uses and users, the Department asked the Klamath and other Indian Tribes (Basin Tribes or Tribes) to consult with Reclamation on the matter. A memorandum of understanding between those parties called for assessment, in consultation with the Tribes, of the impacts of the Plan on tribal trust resources. During roughly the same period, the Department's Bureau of Indian Affairs (Bureau) filed claims on behalf of the Klamath Tribe in an Oregon state-court adjudication intended to allocate water rights. Since the Bureau is responsible for administering land and water held in trust for Indian tribes, it consulted with the Klamath Tribe, and the two exchanged written memorandums on the appropriate scope of the claims ultimately submitted by the Government for the benefit of the Tribe. Respondent Klamath Water Users Protective Association (Association) is a nonprofit group, most of whose members receive water from the Project and have interests adverse to the tribal interests owing to scarcity of water. The Association filed a series of requests with the Bureau under the Freedom of Information Act (ForA), 5 U. S. C. § 552, seeking access to communications between the
Bureau and the Basin Tribes. The Bureau turned over several documents, but withheld others under the attorney work-product and deliberative process privileges that are said to be incorporated in FOIA Exemption 5, which exempts 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," § 552(b)(5). The Association then sued the Bureau under FOIA to compel release of the documents. The District Court granted the Government summary judgment. The Ninth Circuit reversed, ruling out any application of Exemption 5 on the ground that the Tribes with whom the Department has a consulting relationship have a direct interest in the subject matter of the consultations. The court said that to hold otherwise would extend Exemption 5 to shield what amount to ex parte communications in contested proceedings between the Tribes and the Department.
Held: The documents at issue are not exempt from FOIA's disclosure requirements as "inter-agency or intra-agency memorandums or letters." Pp.7-16.
(a) Consistent with ForA's goal of broad disclosure, its exemptions have been consistently given a narrow compass. E. g., Department of Justice v. Tax Analysts, 492 U. S. 136, 151. Pp. 7-8.
(b) To qualify under Exemption 5's express terms, a document must satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds the document. This Court's prior Exemption 5 cases have addressed the second condition, and have dealt with the incorporation of civil discovery privileges. So far as they matter here, those privileges include the privilege for attorney work product and the so-called "deliberative process" privilege, which covers documents reflecting advisory opinions, recommendations, and deliberations that are part of a process by which Government decisions and policies are formulated. NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 150. The point of Exemption 5 is not to protect Government secrecy pure and simple, and the Exemption's first condition is no less important than the second; the communication must be "inter-agency or intra-agency," 5 U. S. C. § 552(b)(5). "[A]gency" is defined to mean "each authority of the Government," § 551(1), and includes entities such as Executive Branch departments, military departments, Government corporations, Government-controlled corporations, and independent regulatory agencies, § 552(f). Although Exemption 5's terms and the statutory definitions say nothing about communications with outsiders, some Courts of Appeals have held that a document prepared for a Government agency by an outside consultant qualifies as an
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