position. Coastal States, 617 F.2d at 866. A determinative question seems to be whether release of material would harm candid discussions and thereby interfere with the ability of agencies to function effectively. Dudman Communications, 815 F.2d at 1568.
In this case, OGE asserts the deliberative process privilege for three classes of documents. First, OGE declined to disclose a preliminary staff analysis and ten versions of a draft memorandum from Potts to designated agency ethics officers. The proposed memorandum set forth a detailed policy evaluation which the agency ultimately elected not to issue. These materials are distinctively deliberative. Their disclosure would impede agency decision-making and create public confusion regarding the agency's rationale. This is especially true where, as here, the position under discussion is never formally issued. See, e.g., Russell v. Department of the Air Force, 221 U.S. App. D.C. 96, 682 F.2d 1045, 1048-49 (1982).
Reverting to the "pre-decisional" prong of Exemption 5, plaintiffs maintain in their opposition memorandum that these particular draft documents could not qualify, since no decision resulted from them. This is exalting semantics over substance. The determination not to issue a policy evaluation might itself be a final decision. Furthermore, although "many processes might not 'ripen into agency decisions,'" that does not preclude application of the deliberative process privilege. Access Reports v. Department of Justice, 288 U.S. App. D.C. 319, 926 F.2d 1192, 1196 (D.C. Cir. 1991) (citation omitted). "The exemption does not 'turn on the ability of the agency to identify a specific decision in connection with which a memorandum is prepared.'" Id. (citation omitted).
Second, OGE withheld six preliminary drafts of a proposed response to a congressional inquiry.
Potts contends, and the court agrees, that this information in draft form represents the personal opinion of the author, not yet adopted as the final position of the agency, thus exempt from FOIA disclosure. See Coastal States, 617 F.2d at 866. Moreover, release of the drafts would inappropriately reveal many editorial judgments made by the agency during the review process. See Dudman Communications, 815 F.2d at 1568-69.
Third, OGE retained handwritten notes reflecting preliminary thoughts of agency personnel, as well as underlining and commentary by agency staff on the Trust instrument and related documents. After redacting the commentary and underlining, the agency released a complete copy of the underlying documents. Disclosure of this type of deliberative material inhibits open debate and discussion, and has a chilling effect on the free exchange of ideas. See Coastal, 617 F.2d at 866.
At oral argument on February 13, 1995, counsel Klayman renewed his request for in camera inspection of documents that OGE withheld or redacted. Counsel for OGE, with the court's encouragement, agreed to the request. Thereupon, the court directed OGE to supply to chambers all documents alleged not to be "agency records," or otherwise exempt from disclosure under 5 U.S.C. § 552(b)(5). Where applicable, OGE was to indicate portions that were redacted on any copies provided to Klayman. The documents were produced in chambers on February 15, 1995 and examined in detail. Each document was in fact as described by OGE. The court is persuaded that OGE has properly invoked an exemption for non-agency records and a privilege for deliberative material.
The court finds that the Trust is not an advisory committee, and thus not subject to FACA or FOIA. This finding is dispositive with respect to Count 1 of the Amended Complaint. Further, the court finds no basis upon which to conclude that OGE responded improperly to plaintiffs' FOIA requests as alleged in Count 2.
A separate order shall issue this date.
Royce C. Lamberth
United States District Judge
This case comes before the court on motions by each of the defendants for dismissal or summary judgment, and a motion by plaintiff Judicial Watch, Inc. for a supplementary order concerning in camera inspection of documents and granting leave to amend its FOIA complaint. Upon consideration of the filings and oral argument of counsel, the relevant law, and for the reasons more fully set forth in a memorandum opinion issued by the court this date, it is hereby ORDERED that:
1. Defendant Clinton's motion for dismissal of Count 1 of the Amended Complaint is hereby GRANTED.
2. Defendant Mikva's motion for dismissal of Count 1 is hereby GRANTED.
3. The motion by the Trust and its trustees for dismissal of the Amended Complaint is hereby GRANTED.
4. Defendant Berman's motion for dismissal of the Amended Complaint is hereby GRANTED.
5. Defendant Potts' motion for summary judgment as to Count 2 is hereby GRANTED.
6. Plaintiff Judicial Watch's motion for a supplementary order concerning in camera inspection of documents and granting leave to amend its FOIA complaint is hereby DENIED. Local Rule 108(i) requires that a motion for leave to file an amended pleading shall be accompanied by an original of the proposed pleading as amended. Because plaintiff's motion is not in compliance with Local Rule 108(i), because this case is ripe for decision and a delay of several weeks is unwarranted, and because the court finds no reason at this time to expand the scope of in camera inspection, the motion is denied. Plaintiff may of course pursue its new FOIA claim by filing another cause of action, which will be a related case under Local Rule 405(a)(4).
This action now stands DISMISSED WITH PREJUDICE.
Royce C. Lamberth
United States District Judge