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WASHINGTON POST CO. v. U.S. DEPT. OF THE AIR FORCE

August 29, 1985

THE WASHINGTON POST COMPANY, Plaintiff,
v.
U.S. DEPARTMENT OF THE AIR FORCE, Defendant



The opinion of the court was delivered by: PARKER

 I.

 BACKGROUND

 On June 15, 1984, the Secretary of the Air Force issued a press release describing an inquiry undertaken by the Inspector General of the Air Force to determine the effectiveness of inventory practices implemented by the Air Force. The result of this inquiry was the compilation of a "Functional Management Inspection of Supply Retention and Excess Policy PN 84-6-8, 1 December 83 - 14 June 84" ("FMI"). The document is seventy-six pages in length and divided into three parts. The first of these three parts, a four page executive summary of the FMI, was disclosed to the public in the June 15 press release.

 On June 19, 1984, plaintiff submitted a FOIA request, seeking disclosure of the entire text of the report. Defendant denied plaintiff's request on August 22, 1984, on the grounds that the material was exempt under 5 U.S.C. § 552(b)(5). On October 3, 1984, plaintiff filed an administrative appeal, which was denied on November 27, 1984. Having thus exhausted the administrative remedies available to it, plaintiff commenced this action on January 16, 1985.

 II.

 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

 The Air Force denied plaintiff's request on the basis of the exemption provided for in 5 U.S.C. § 552(b)(5) ("Exemption 5"). This section exempts from FOIA 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 . . ." The purpose of this exemption is to encourage free expression of ideas within the government during the process of deliberation, to protect against premature disclosures of proposed policies, and to protect against public confusion by disclosing rationales that were not the basis for agency action. Coastal States Gas Corporation v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980) ("Coastal States"); United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (D.C. Cir. 1971); Bristol-Meyers Company v. Federal Trade Commission, 138 U.S. App. D.C. 22, 424 F.2d 935 (D.C. Cir. 1970).

 A. Application of the Executive Privilege Under Exemption 5

 Among those privileges encompassed by Exemption 5 is the executive or deliberative process privilege. National Labor Relations Board v. Sears, Roebuck and Company, 421 U.S. 132, 150, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975) ("Sears"). This privilege protects advice, recommendations, and opinions which are part of the deliberative decision making processes of government. Id. However, the privilege is to be narrowly construed to the extent such a construction is consistent with the efficient operation of the government. Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, 1078 (D.C. Cir. 1971).

 It is clear to the Court that at least some portions of the FMI were initially protected from disclosure under the deliberative process privilege. The inspection initiated by the Air Force of its own policies and procedures was an effort to discover, evaluate, and remedy specific problem areas. Such an internal self-evaluative program is protected under Exemption 5. Ashley v. Department of Labor, 589 F. Supp. 901, 909 (D.D.C. 1983) (quoting Sears, 421 U.S. at 151 n.18).

 
if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls ...

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