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NEVAS v. DOJ

April 29, 1992

STEPHEN E. NEVAS, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant. JOHN R. MAPOTHER, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.


PRATT


The opinion of the court was delivered by: JOHN H. PRATT

MEMORANDUM OPINION

Before this Court are cross motions for summary judgment and the oppositions and replies thereto. In addition, this Court has reviewed a classified declaration pursuant to our Order of December 6, 1989. For the reasons stated below, we will grant plaintiffs' motion for summary judgment and deny defendant's motion for summary judgment.

 In these consolidated actions under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiffs seek access to records in the possession of the Department of Justice ("the Department" or "DOJ") relating to the Department's decision to exclude Austrian President Kurt Waldheim from the United States and place him on the "Watchlist" of excludable aliens maintained by the Immigration and Naturalization Service. The Waldheim Report is a 204-page memorandum with 26 photographs attached, produced by an attorney, Neal M. Sher, Director, Office of Special Investigations ("OSI"), Criminal Division, United States Department of Justice, for use by the Attorney General in making his decision on Waldheim's excludability under the immigration laws. Declaration of Frank R. Newett at PP8, 9a. The Department has withheld these records on the basis of FOIA Exemptions 5 and 7(A), 5 U.S.C. § 552(b)(5), (b)(7)(A). Because we find that neither of these exceptions apply, we will order that the Waldheim Report and the historical documents which underlie it be released, subject to some limited deletions. *fn1"

 Exemption 5

 The Waldheim Report was withheld pursuant to 5 U.S.C. § 552(b)(5), which exempts from mandatory disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." To come within this exception, a document must be both (1) predecisional, in that it is "received by the decisionmaker on the subject of the decision prior to the time the decision is made," National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 151, 44 L. Ed. 2d 29 , 95 S. Ct. 1504 (1975), and (2) deliberative, in that it "reflects the give-and-take of the consultative process." Wolfe v. Department of Health and Human Services, 268 App. D.C. 89, 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc) (quoting Coastal States Gas Corp. v. Department of Energy, 199 App. D.C. 272, 617 F.2d 854 (D.C. Cir. 1980)).

 The privilege for deliberative materials, however, is a limited one. In Environmental Protection Agency v. Mink, 410 U.S. 73, 87-88, 35 L. Ed. 2d 119 , 93 S. Ct. 827 (1973), the Supreme Court held that Exemption 5 does not extend to "memoranda consisting only of compiled factual material or purely factual material severable from its context." This holding was expressly accepted and expanded by Congress a year later in the 1974 amendments to the Act. See 5 U.S.C. § 552(b) ("Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection."). Consequently, it is well established that the deliberative process privilege "applies only to the 'opinion' or 'recommendatory' portion of [a] report, not to factual information which is contained in the document." Coastal States Gas Corp. v. Department of Energy, 199 App. D.C. 272, 617 F.2d 854, 867 (D.C. Cir. 1980).

 An exception exists to the general rule (i.e., that all factual material must be disclosed) where the release of the factual information would reflect or reveal the deliberative process. In Montrose Chemical Corp. v. Train, 160 App. D.C. 270, 491 F.2d 63, 64-65 (D.C. Cir. 1974), the disputed documents were two factual reports prepared by Environmental Protection Agency staff summarizing evidence contained in the 9,200-page public record created during eight months of hearings on the pesticide DDT. The court held that "when a summary of factual material on the public record is prepared by the staff of an agency administrator, for his use in making a complex decision, such a summary is part of the deliberative process, and is exempt from disclosure under exemption 5 of FOIA." Id. at 71. The Montrose exception, however, is a narrow one, as the court itself noted. Id. ("Where the factual material is not already in the public domain, a different result might be reached."); see also 1 Braverman & Chetwynd, Information Law § 9-4.3 at 371 (1985) ("the Montrose exception is relatively rare").

 More relevant to the instant dispute than Montrose is the D.C. Circuit's decision in Playboy Enterprises, Inc. v. Department of Justice, 219 App. D.C. 343, 677 F.2d 931 (D.C. Cir. 1982). Plaintiff there sought to compel disclosure of an FBI report concerning an investigation into an informant who had been involved in violence surrounding the Freedom March of 1965. Id. at 933-34. The Department contended that the entire report should be protected under Exemption 5, arguing that the totality of the document "reflects the 'choice, weighing and analysis of facts' by the task force, and is therefore protected as a part of the deliberative process." Id. at 935 (citation omitted). The court rejected this argument, holding that "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." Id. The court distinguished Montrose, limiting its application to situations where the release of factual summaries would allow inquiry into the mental processes of the administrator. *fn2" Id. at 936.

 In this case, DOJ argues that the factual material in the Waldheim Report is so interwoven into the deliberative portions as to be nonsegregable. Defendant's Statement of Material Facts To Which There Is No Genuine Dispute at P7. The Department supports this assertion by stating that

 the entire report is based on a distillation of documents and facts by OSI and its separation of the significant from the insignificant and the truthful from the untrue. Disclosure of the facts in this case would reveal those facts OSI thought would be most significant for the decisionmaker to have, as distinguished from the more voluminous non-significant facts, and thus would reveal the deliberative process itself.

 Id.

 This, however, is the same argument the court rejected in Playboy, stating that "a report does not become part of the deliberative process merely because it contains only those facts which the person making the report thinks material." 677 F.2d at 935. There are surely deliberative portions of the Waldheim Report which should be deleted (pursuant to Mink and § 5 U.S.C. § 552(b)) prior to its release. But it is obvious that a significant portion of the 204-page document is devoted to "purely factual material" which must be released under FOIA. Mink, 410 U.S. at 91.

 We therefore hold that Exemption 5 does not protect the Waldheim Report and the historical records associated therewith from disclosure. However, defendant need not disclose those portions of the Report containing conclusions, ...


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