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INDERJIT BADHWAR v. UNITED STATES DEPT. OF THE AIR

November 20, 1985

INDERJIT BADHWAR, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE AIR FORCE, et al., Defendants



The opinion of the court was delivered by: OBERDORFER

Louis F. Oberdorfer, United States District Judge.

 MEMORANDUM

 I.

 Plaintiffs in this action are Interjit Badhwar and Donald F. Goldberg. Both are reporters working on the staff of nationally syndicated columnist Jack Anderson. As part of an investigation of the military's accident investigation program, plaintiffs sought disclosure of information in the hands of the Departments of the Air Force, Navy, and Army. In response, defendants released a substantial number of documents to plaintiffs, but claimed that other information was exempt from disclosure pursuant to Exemption 5 of the Freedom of Information Act [FOIA], 5 U.S.C. § 552(b)(5) (1982). This action ensued.

 Exemption 5 to the FOIA provides:

 
This section does not apply to matters that are --
 
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). Specifically at issue in this case is the defendants' claim of an exemption based on the deliberative process privilege, a privilege unique to the government. It protects predecisional and deliberative material, e.g., "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980). The purposes of the privilege are:

 
to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.

 617 F.2d at 866 (citation omitted).

 On March 6, 1985, after extensive briefing and argument, the Court, 615 F. Supp. 698, issued a Memorandum and Order dealing with the parties' cross-motions for summary judgment. The Order directed the release of information that had already been disclosed in litigation, and that was already in the public record. It ordered exempt from disclosure witness statements contained in safety reports; findings, conclusions, and recommendations of the Army and Air Force safety boards; and "For Official Use Only" stamps appearing on releasable documents.

 II.

 A.

 (1)

 The "findings, conclusions and recommendations" contained in safety reports *fn1" are "deliberative, predecisional, and exempt from disclosure under Exemption 5." Memorandum (Mem.) at 9 (filed March 6, 1985) (citation omitted). At issue in this case is the Navy's failure to segregate and disclose the factual portions of its report. Factual information "reasonably segregable" from exempt information must be disclosed under the FOIA. 5 U.S.C. § 552(b); Mink, supra, 410 U.S. at 91.

 Factual information which is drawn from confidential witness statements remains exempt from disclosure. Cooper v. Department of the Navy, 558 F.2d 274, 278 (5th Cir. 1977), modified on rehearing, 594 F.2d 484 (5th Cir.), cert. denied, 444 U.S. 926, 100 S. Ct. 266, 62 L. Ed. 2d 183 (1979). This is true even though these same facts have already been publicly disclosed in the collateral report. Id. at 276. As part of its detailed justification, the Navy has proffered the second Affidavit of Commodore Breast (Breast Affidavit) (filed March 29, 1985). *fn2" The Breast Affidavit reveals that the sources of the facts in the safety report include "confidential witness statements, engineering investigations, photographs, manuals, logs, etc." Breast Affidavit at para. 10. Moreover, the Navy's explanation for not disclosing material facts not contained in the collateral report discloses that only one of these was derived from a confidential witness statement. Breast Affidavit at para. 14. It is thus certain that this is not a case like Cooper, supra, where the entire safety report must be exempt because:

 
whatever information of a factual nature is contained in it was obtained upon the same promises as actual statements would have been.

 558 F.2d at 278. Instead, this case is similar to United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984), where only a portion of the safety report is protected from disclosure as confidential.

 In this connection, the Navy argues that two sorts of facts appear in its safety reports: foundational facts and deliberative facts. Breast Affidavit at paras. 9, 10. Foundational facts describe the events and circumstances of the accident, as revealed by witness statements, weather reports, and the like. The Navy reasons that such facts are inextricably intertwined with the analytical process of the Safety Board. Deliberative facts are used to support the Board's determination or to rule out competing theories. Breast Affidavit at para. 10. Since these facts are presumably arranged so as to advocate a theory about what caused the accident, argues the Navy, they are inevitably part and parcel of the advocacy -- and hence the deliberative process. The Navy argues that when segregating factual information under the FOIA:

 
More is required than merely plucking factual segments from the reports -- there must be a sensitive reference to the relation of the factual segments to the report as a whole.

 Lead Industries Assoc. v. Occupational Safety and Health Administration, 610 F.2d 70, 85 (2d Cir. 1979).

 The cases cited by the Navy in support of its position indicate that in certain limited circumstances the facts of a deliberative document may be so inextricably intertwined with the deliberations themselves that they cannot be segregated and disclosed. In Lead Industries, supra, the documents at issue were reports prepared at the request of the Occupational Safety and Health Administration by outside consultants to aid the agency in its rulemaking. The reports were summaries of the massive public record, along with analyses and conclusions by the consultants. According to the Court, where the documents at issue are:

 
submitted to the agency by its staff or outside consultants to assist it in rendering an informed decision upon the typically Gargantuan rule-making record . . . disclosure of factual portions of the report may reveal the deliberative process of selection.

 610 F.2d at 83 (citation omitted).

 The Court in Montrose Chemical Corp. of California v. Train, 160 U.S. App. D.C. 270, 491 F.2d 63 (D.C. Cir. 1974) confronted a similar situation. Defendant Environmental Protection Agency argued that a summary of information on the public record prepared by an EPA staff member should be protected from disclosure under Exemption 5. The Court faced the questions:

 
Can Montrose use the FOIA to discover what factual information the Administrator's aides cited, discarded, compared, evaluated, and analyzed to assist the Administrator in formulating his decision? Or would such discovery be an improper probing of the mental processes behind a decision of an agency?

 491 F.2d at 68. The Court decided that "to probe the summaries of record evidence would be the same as probing the decision-making process itself." Id. In reaching this decision, the Court noted:

 
It must also be borne in mind that [the Administrator] did render a 50-page decision, citing voluminous facts and statistics, and explained in detail the rationale of his, the Administrator's, final decision. The world was not left in doubt as to either the factual basis or the reasoning behind the final product.

 Id.

 In Russell v. Department of the Air Force, 221 U.S. App. D.C. 96, 682 F.2d 1045 (D.C. Cir. 1982), the Court refused to compel disclosure of a draft manuscript of an official Air Force history of the use of Agent Orange and other herbicides in the Vietnam War. After an in camera inspection, the Court concluded that:

 
a simple comparison between the pages sought and the official document would reveal what material supplied by subordinates senior officials judged appropriate for the history and what material they judged inappropriate. Exemption (b)(5) exists to prevent such disrobing of an agency decision-maker's judgment.

 682 F.2d at 1049.

 But, the "exception" established by the cases cited by defendants is narrow. Paisley v. Central Intelligence Agency, 229 U.S. App. D.C. 372, 712 F.2d 686, 699 (D.C. Cir. 1983), vacated and remanded on other grounds, 233 U.S. App. D.C. 69, 724 F.2d 201 (D.C. Cir. 1984). *fn3" The general rule of the FOIA is that facts must be segregated and disclosed. Mink, supra. The exception:

 
cannot be read so broadly as to undermine the basic rule; in most situations factual summaries prepared for informational purposes will not reveal deliberative processes and hence should be disclosed.

 Paisley, supra, 712 F.2d at 699 (citations omitted).

 In Playboy Enterprises, Inc. v. Department of Justice, 219 U.S. App. D.C. 343, 677 F.2d 931 (D.C. Cir. 1982) (Robb, J.), *fn4" the Department of Justice argued that a 302-page report submitted to the Attorney General by a task force on the investigation of a certain individual reflected "the 'choice, weighing and analysis of facts' by the task force, and [was] therefore protected as a part of the deliberative process." 677 F.2d at 935 (citing Brief for Appellant). The Court held that the report was not covered by Exemption 5, stating:

 
Anyone making a report must of necessity select the facts to be mentioned in it; but a report does not become a part of the deliberative process merely because it contains only those facts which the person making the report thinks material. If this were not so, every factual report would be protected as a part of the deliberative process.

 Id; see also ITT World Communications, supra (factual portions of notes reporting substance of closed meetings held subject to disclosure).

 According to the Court in Playboy Enterprises, the "deliberative process privilege is . . . dependent upon the individual document and the role it plays in the administrative process." 677 F.2d at 935. Applying this rule to the instant situation, it is clear that in the cases relied upon by the Navy, the document held exempt was specifically prepared to aid the agency deliberative process. In each case, the document at issue had been one deliberative aid used by the agency in reaching a final, public decision. Release of the document would enable a comparison of the predecisional document with the final decision it helped produce. Thus, disclosure of the facts in the document would disclose the facts as they existed at one stage of the agency's deliberative process before the facts were arranged in their final, public form.

 The safety report at issue in this case does not bear the same relationship to the facts on the public record, here the collateral report. The safety report is not created to aid in the formation of the collateral report. The collateral report is a separate and independent document. The facts in the safety and collateral reports are both culled from a body of non-public information. It is only through the two reports that the facts can become public. Since the two reports are prepared from the same body of information, an overlap in their factual content is to be expected. This does not mean, however, that a comparison of the two will expose the ...


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