in the inferences it draws from the same information. The glaring inconsistency of this position seems more to prove, than discount, plaintiffs' position that inferences in fact cannot reliably be made from the requested information. The simple request for the status of a pending regulation does not implicate what is or is not being recommended.
Nor is the information that a recommendation has been made by one agency to another sufficiently "deliberative" to trigger the protections of the privilege. On the basis solely of this information, no particular policy or rationale could be attributed to any agency or official such that the consultative and predecisional functions of government officials might be discouraged or chilled. Nor would the public be confused by mere disclosure that executive agencies are complying with established rulemaking procedures. Such is hardly a secret to be kept from the public. At most, disclosure of such limited information as plaintiffs are seeking might allow plaintiffs to ascribe responsibility for delay to a particular agency. Nevertheless, as the parties have stipulated, the regulatory process is a fluid one and even this inference may not be reliable. Moreover, the length of time an agency uses to review a proposal is not itself substantive information and does not give rise to reliable indications or inferences as to any underlying advice, opinions, or recommendations in support of the regulation.
The Reach of the Deliberative Process Privilege
Defendant, as a last resort, also contends that even if the requested information is factual, the factual details of particular, ongoing, decisionmaking processes are as protected by the deliberative process privilege as the recommendations or underlying advice themselves. In support of this argument defendant cites a series of cases, which it admits are factually inapposite, but which purport to set forth the principle that the deliberative process privilege protects not simply deliberative material, but also the outside contours of the deliberative process itself. Defendant argues that this principle should be extended to encompass the information requested in the instant case because disclosure would interfere with the integrity of the decisionmaking process by inviting lobbying and placing pressure on government officials to resolve matters with expedition and dispatch. This, of course, is entire speculation.
In addition, the majority of decisions relied on by defendant, aside from not being on point, fall within a well-recognized, but narrow, exception to the general rule that facts in deliberative documents must be disclosed: that is, facts will be protected by Exemption 5 when they are selected or summarized in such a way that they reflect a deliberative process. Illustrative of this exception is the D.C. Circuit's decision in Montrose Chemical Corp. of California v. Train, 160 U.S. App. D.C. 270, 491 F.2d 63 (D.C. Cir. 1974). In that case, the court held that a staff-prepared summary of factual evidence on the record in an administrative hearing was exempt under the deliberative process privilege because disclosure would reveal the aides' evaluation and analysis of the facts. Id. at 68. No comparable selection process is implicated by disclosure in the instant case. At most it could be said the information would reveal what regulatory subjects FDA, HHS, and OMB have chosen to address amongst each other out of a larger field of regulatory proposals before the FDA. Exposing this choice, however, certainly does not compromise the decisionmaking process any more than disclosure by the FDA itself under the President's own directive of the regulatory subjects it has chosen in the first instance to consider.
Defendant, for reasons that are apparent, contends that the principles of this exception should not be limited to the facts of the cited cases. Defendant's position would allow the exception to swallow the rule. Moreover, the very premise of defendant's claim is that disclosure in the instant case would compromise the decisionmaking process, which we reject. Defendant is grasping for straws when it asserts that the essence of the deliberative process privilege is to protect public officials from lobbyists while they deliberate on public policy. Unlike the analogy drawn by defendant to the decisionmaking process of an appellate panel,
the regulatory process is not a "private" one, nor did Congress intend for Exemption 5 to so make it. Rather, the far more limited essence of the privilege is to protect agencies' predecisional policy discussions from public scrutiny. As we have discussed, no such policy discussions would be compromised by disclosure in this case.
We are guided in our decision by the Supreme Court's understanding of Congress' intent that Exemption 5 be construed "as narrowly as consistent with efficient Government operation." Environmental Protection Agency v. Mink, 410 U.S. 73, 87, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973). For the reasons discussed above, we accordingly hold that the information requested by plaintiffs is not exempt from disclosure under Exemption 5 of the FOIA.
An order consistent with the foregoing has been entered this day.