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FULBRIGHT & JAWORSKI v. DEPARTMENT OF THE TREASURY

May 28, 1982

Fulbright & Jaworski, Plaintiff,
v.
Department of the Treasury, et al., Defendants



The opinion of the court was delivered by: GREEN

 GREEN, District Judge:

 Plaintiff seeks access under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. (1976), to records of the Department of Treasury (DOT) and Internal Revenue Service (IRS) pertaining toRevenue Ruling, 79-152, 1979-1 C.B. 237, the relationship of Section 877 of the Internal Revenue Code of 1954, as amended, to income tax treaties containing a 'savings clause,' and the protocol signed November 24, 1978, United States -- France Income Tax Treaty. Eight of the documents defendants identified remain in dispute. These documents were submitted to the Court for in camera inspection. Defendants also filed a Vaughn Index. A hearing was held on May 26, 1982 at which counsel vigorously argued about the disclosure of each document. Defendants claim each of the documents falls within the deliberative process privilege of Exemption 5, 5 U.S.C. § 552(b)(5) and that Document No. 3 is protected also by Exemption b(1), 5 U.S.C. § 552(b)(1).

 The basic policy of FOIA is to promote disclosure. Disclosure is mandatory unless a document falls within one of nine narrow exemptions. EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973); Department of Air Force v. Rose, 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). Under exemption 5 of the FOIA an agency may withhold

 
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).

 One of the three traditional privileges invoked under Exemption 5 is the deliberative process privilege.

 The deliberative process privilege exempts materials that are "predecisional" and "deliberative," but requires disclosure of policy statements and final opinions "that have the force of law or explain actions that an agency has already taken." Taxation with Representation Fund v. IRS, 207 U.S. App. D.C. 331, 646 F.2d 666, 677 (D.C. Cir. 1981) (hereinafter Taxation with Representation). To be "predecisional" a document must be generated before the adoption of an agency policy. To be "deliberative" it must reflect the give-and-take of the consultative process. Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980) (hereinafter Coastal States).

 The basic policies underlying this exemption are threefold:

 Coastal States, supra, 617 F.2d at 866. In essence, under the deliberative process privilege, the "working law" of an agency must be disclosed, while opinions which are advisory, consultative and part of the agency's internal debate prior to a decision are protected. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-54, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1974).

 Document Nos. 1 and 2 : The documents in dispute can be divided into four groups, the first of which contains Document Nos. 1 and 2. Document No. 1 is four pages of a seventeen-page memorandum and cover page sent by A. J. Rothkopt, Tax Legislative Counsel, to nine individuals at DOT and IRS on November 19, 1964. The four excised pages are the only ones which contain information responsive to plaintiff's request. The other pages have been properly withheld as non-responsive. The memorandum is a "present thoughts" outline of several individuals at DOT regarding the Fowler Task Force recommendations. *fn1" The authors comment on these recommendations and make further proposals themselves. The memorandum served as a basis for discussion of the Fowler Task Force recommendations, and itself was subject to further discussion on November 24, 1964.

 Document No. 2 is a one-page memorandum dated December 9, 1964 from Stanley Surrey, Assistant Secretary, DOT, to G. Griffith Johnson, Assistant Secretary for Economic Affairs, Department of State (DOS). It was released in part. Only portions assessing the U.S. position in treaty negotiations are being withheld. This memorandum solicits the comments of the DOS on certain elements of the Fowler Task Force recommendations.

 Document No. 1 and the portions of Document No. 2 withheld reflect the give-and-take of the discussions concerning the adoption of the Fowler Task Force recommendations. They evaluate these recommendations for their effect, inter alia, on foreign policy and treaty negotiations and make further proposals. As such, they are predecisional and deliberative. Analysis and recommendations do not constitute agency "working law" or final policy. Document Nos. 1 and 2 (the portion withheld) therefore fall within the deliberative process privilege.

 Plaintiff argues that the age of these documents makes their withholding arbitrary and capricious under 31 C.F.R. § 1.2. Even though they were written in 1964, the Court agrees with the government that their release could have a possible adverse effect on the process of evaluating proposed legislation. In addition, the Court notes that both documents were marked administratively confidential. Accordingly, ...


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