the Smog Conspiracy Defendants. (Documents number 1-4 and 23 . . .)." Accordingly, the court finds the only questions remaining before it concern the second and third groups of documents since the first group is not to be disclosed.
The DOJ argues that all of the remaining documents are exempt from mandatory disclosure under FOIA. Both Exemption 5 and Exemption 7(A) are cited as independent grounds for withholding all or part of the remaining 32 documents. In support of its motion for summary judgment, two affidavits are attached from Leo D. Neshkes
and Bernard M. Hollander,
which set forth in detail the nature and function of the documents withheld and the potential harms which would flow from release of the documents. The essence of the DOJ's argument is that: (1) the documents withheld are an integral part of the Department's decision-making process leading to the modification of the consent decree and are exempt from disclosure as internal predecisional government documents under Exemption 5;
and (2) the same documents are investigatory records whose disclosure would interfere with on-going enforcement activities in the Consent Decree case and in other consent decree negotiations within the meaning of Exemption 7(A).
Plaintiff responds that neither exemption applies because all of the documents were shown to or submitted by the defendants in the Consent Decree case and were part of a cooperative effort to revise the Consent Decree in defendants' favor. The plaintiff alternatively reasons that Exemption 5 cannot be read to apply to the documents because they were not internal agency documents within the meaning of FOIA. Disclosure to the Consent Decree defendants, plaintiff contends, destroys the documents' internal status. In addition, plaintiff independently argues that Exemption 7 is inapplicable because the nature of the cooperation between the parties in seeking to ameliorate the terms of the 1969 Consent Decree would turn the meaning of law enforcement purpose and investigatory records on its head.
III. Exemption 5
The first issue presented is whether Exemption 5 authorizes the DOJ to withhold all or part of 32 documents, three of which were generated outside the agency and 29 of which were prepared by the agency in connection with the Consent Decree modification negotiations and either shown to or transmitted to the defendants in that case.
Exemption 5 provides that the mandatory disclosure provisions of the FOIA do not apply to "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. Sec. 552(b)(5). In other words, the burden is on the DOJ to establish that the documents: "(1) are 'inter-agency or intra-agency memorandums or letters,' and (2) consist of material that 'would not be available by law to a party . . . in litigation with the agency.'" Federal Open Market Committee v. Merrill, supra, 443 U.S. at 352; Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 862, 868 (D.C. Cir. 1980).
The DOJ argues strenuously that both the documents prepared by the government and shown to the Consent Decree defendants and the documents prepared by the Consent Decree defendants are "intra-agency . . . memorandums or letters." In support of their arguments the DOJ cites Ryan v. Department of Justice, 199 U.S. App. D.C. 199, 617 F.2d 781 (D.C. Cir. 1980); Brockway v. Department of the Air Force, 518 F.2d 1184 (8th Cir. 1975); Wu v. National Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972), cert. denied, 410 U.S. 926, 35 L. Ed. 2d 586, 93 S. Ct. 1352 (1973); and Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (D.C. Cir. 1971). The Court finds each of these cases to be distinguishable from this case.
In Ryan, the D.C. Circuit considered whether advice solicited by the DOJ from individual Senators concerning judicial selection procedures was an "inter-agency or intra-agency" memoranda or letters. 617 F.2d at 784. The Court held that the documents fell within the meaning of "inter-agency" and "intra-agency," although prepared outside the agency. Id. at 789-90. Central to its decision, however, was the fact that the advice was obtained on the Department's initiative. Id. at 789.
In this case, the DOJ has not refuted plaintiff's contention that the Consent Decree defendants submitted documents in an effort to seek modification of the 1969 Consent Decree. The fact that the DOJ originally brought the suit resulting in the Consent Decree is too remote an event to categorize the letters as a response to a DOJ request.
It is also relevant that the Senators, unlike the Consent Decree defendants, are part of the federal government and exercise, collectively, concurrent power with the Executive Branch with respect to judicial nominations, a governmental function. U.S. Const., Art. II Sec. 2 Cl. 2. The modification of a consent decree, on the other hand, involves negotiations between the DOJ and its adversary. It is not a purely internal governmental matter in which the DOJ is simply seeking the advice of disinterested consultants.
In Brockway, the Eighth Circuit held that statements of witnesses to military personnel in a military aircraft safety investigation, as opposed to a pre-suit investigation, were exempt as intra-agency documents. 518 F.2d at 1194. The Court recognized the special importance of uncovering causes of aviation accidents and encouraging frank discussion, but expressly limited its interpretation of Exemption 5 to the "narrow facts" of the case and noted that it is the exception, not the rule, where disclosure defeats rather than supports the quality of government action. Id. More recently, however, the Ninth Circuit, in Weber Aircraft Corp. v. United States, held that similar statements of witnesses in a military aircraft accident investigation did not fall within Exemption 5.
Even under Brockway, it is still not clear whether "sunlight" is detrimental to the DOJ's Consent Decree negotiation process, and whether that fact, if true, is an adequate reason to preclude disclosure under FOIA.
In Wu, the Court held that reports of outside professors hired as consultants to review research grant proposals for the agency were exempt as predecisional intra-agency documents. 460 F.2d at 1032. The court relied on the fact that the National Endowment for the Humanities enabling legislation, 20 U.S.C. Sec. 959(a)(4), authorized it to hire independent consultants to review grant proposals, and converted them into De facto agency employees. Id. The present case is again distinguishable. The DOJ received advice from, and engaged in discussions with their adversaries, not paid consultants. To characterize the documents embodying these activities as internal requires the Court to expand Exemption 5 beyond the limit reached in Wu. Independent consultants are more akin to agency employees than an opposing party in litigation. Likewise, the decision in Soucie v. David, 448 F.2d at 1078 n. 44, is distinguishable because it too involved the receipt of advice from paid consultants hired by an agency.
In County of Madison v. Department of Justice, 641 F.2d 1036, 1038-39 (1st Cir. 1981), the court considered whether DOJ settlement negotiation documents in an Indian claims case were exempt from disclosure under FOIA. The DOJ asserted the deliberative process privilege of Exemption 5,
but the Court found, distinguishing Ryan, Brockway and Wu, that:
The Oneidas approached the government with their own interest in mind. While they came to parley, they were past and potential adversaries, not coopted colleagues. We recognize that the government also stood to benefit from a successful settlement, but we believe that expanding exemption five to include self-seeking petitioners "within" agencies would do more violence to statutory language than Congress' direction permits.
Id. at 1040. The Court held, with respect to letters submitted by the Oneidas to the DOJ, that while it:
confess[ed] to feeling a sense of indecent exposure in countenancing a third party adversary obtaining confidential exchanges between the Indians' attorneys and the government[, it could not] agree that this means that Indians are "within" the Department of Justice.