State of North Dakota Ex Rel. Allen I. Olson, Attorneygeneral, Appellant, v. Cecil D. Andrus, Secretary of the Interior, United Statesdepartment of the Interior, James T. Mcintyre,jr., and Office of Management Andbudget, Appellees, 581 F.2d 177 (8th Cir. 1978)

The State of North Dakota appeals from the District Court's denial of its request under the Freedom of Information Act (FOIA or the Act) to inspect various government documents. We reverse.

North Dakota requested access to several government documents prepared in connection with the Administration's policy concerning water projects, particularly, the Garrison Diversion Project in North Dakota.¹  Its request was denied by the respective agencies. These same documents had been the subject of a discovery request in an action filed against the government in the District Court for the District of Columbia by the National Audubon Society (Audubon). National Audubon Society, Inc. v. Andrus, No. 76-0943 (D.D.C., filed May 27, 1976).²  While Audubon's discovery motion was pending, the government's attorney voluntarily disclosed these documents to Audubon's counsel.

The principal issue on appeal is whether the government, by disclosing the documents in the Audubon litigation, waived its right to assert in this action that the documents are exempt from disclosure under 5 U.S.C. § 552(b) (5) (exemption 5).³  The District Court without discussing the waiver issue held that the documents were privileged and exempt from disclosure under exemption 5. The Court denied North Dakota's request and granted the government's motion for summary judgment.⁴  We hold that by voluntarily surrendering the documents in the Audubon litigation, the government waived its right to assert that the documents are exempt from disclosure in this action.⁵ 

The FOIA, promulgated in 1966, was intended generally to increase public access to government records. See Note, The Freedom of Information Act and the Exemption for Intra-Agency Memoranda, 86 Harv. L. Rev. 1047, 1047-1048 (1973) (hereinafter Note). As the Act's legislative history makes clear, such access was intended to be very broad. See generally H.R.Rep.No.1497, 89th Cong., 2d Sess. Reprinted in (1966) U.S.Code Cong. & Admin.News, p. 2418; S.Rep.No.813, 89th Cong., 1st Sess. (1965); Katz, The Games Bureaucrats Play: Hide and Seek Under the Freedom of Information Act, 48 Tex. L. Rev. 1261, 1261-1262 (1970) (hereinafter Katz). Congress considered the Act necessary to cure the inadequacies thought to exist under the Act's predecessor, section 3 of the Administrative Procedure Act, 5 U.S.C. § 1002 (1964 ed.), and to provide a vehicle through which the public could gain access to official information that Congress thought had unnecessarily been withheld. See FAA Administrator v. Robertson, 422 U.S. 255, 262, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975); Brockway v. Department of Air Force, 518 F.2d 1184, 1186 (8th Cir. 1975).

The Act requires government agencies to make their records "promptly available to any person," 5 U.S.C. § 552(a) (3), and those requesting information need not particularize any special need. Brockway v. Department of Air Force, supra at 1186. Congress recognized, however, that while the Act favored a broad disclosure policy, it was necessary in certain narrowly defined areas to preserve governmental privacy. S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965). Thus, the Act enumerates nine categories of exemptions through which certain government files are protected from public disclosure. The government must bear the burden of proving that the requested information falls within one of the Act's nine exemptions. 5 U.S.C. § 552(a) (4) (B); EPA v. Mink, 410 U.S. 73, 79, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973). The Act's policy in favor of disclosure mandates that the exemptions be construed narrowly. Freuhauf Corporation v. Internal Revenue Service, 522 F.2d 284, 288 (6th Cir. 1975), Vacated on other grounds, 429 U.S. 1085, 97 S. Ct. 1090, 51 L. Ed. 2d 530 (1977), Citing Soucie v. David, 145 U.S.App.D.C. 144, 157, 448 F.2d 1067, 1080 (1971).

Exemption 5, upon which the government relies in this case, has presented courts and commentators with great difficulty. See generally Note, Supra at 1047. The provision exempts from 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." 5 U.S.C. § 552(b) (5).

It is generally agreed that two basic policy considerations govern the scope of exemption 5: "(1) preventing premature disclosure of agency records that might impede the proper functioning of the administrative process" and "(2) eliminating the inhibition of a free and frank exchange of opinions and recommendations among government personnel which could result from routine disclosure of internal communications." Note, Supra at 1049; See American Mail Line, Ltd. v. Gulick, 133 U.S.App.D.C. 382, 388-389, 411 F.2d 696, 702-703 (1969); S.Rep.No.813, 89th Cong., 1st Sess. 9 (1965); Katz, Supra at 1272.

As the Supreme Court has noted, exemption 5's language suggests that the public is entitled to all memoranda or letters that a private party could obtain, through civil discovery, in litigation with the agency. See EPA v. Mink, supra, 410 U.S. at 86, 93 S. Ct. 827. Because the rules of discovery are uncertain in the context of government litigation, however, the Court has indicated that the discovery rules can only be applied in determining the application of exemption 5 "by way of rough analogies."⁶  Id.; see Mead Data Cent., Inc. v. U. S. Dept. of Air Force, 184 U.S.App.D.C. 350, 360, 566 F.2d 242, 252 (1977).

In our view, the District Court correctly decided that the documents in question on their face were inter-agency or intra-agency communications protected by exemption 5. The documents were "internal communications consisting of advice, recommendations, opinions, and other materials reflecting deliberative or policy making processes," rather than "purely factual or investigative reports." See Brockway v. Department of Air Force, supra at 1190, Citing Soucie v. David, supra, 145 U.S.App.D.C. at 154, 448 F.2d at 1077. We turn to North Dakota's contention that the government is precluded from asserting the exemption in this action.

As indicated above, in the course of separate litigation, the government voluntarily permitted counsel for the National Audubon Society to view the documents requested by North Dakota in this action. The government argues that its limited prior disclosure in the Audubon litigation did not amount to a waiver because: (1) Audubon's counsel specifically agreed to maintain the confidentiality of the documents and (2) the government expressly reserved its right to assert at a later time that the documents were privileged. We reject these contentions. While we prefer not to speculate whether or not Audubon's counsel has or will breach his pledge of confidentiality to the government, we note that he cannot eliminate what he already knows in advising his client, whose interests, the government finally conceded at oral argument, are adverse to if not inconsistent with those of North Dakota. Moreover, we question whether, in the course of disclosing these documents to a private party, the government can bind the public and, thereby, foreclose citizens from exercising their rights under the Act merely by executing an agreement in which it reserves its right to assert at a later time that the documents are privileged.⁷ 

In Mead Data Cent., Inc. v. U. S. Dept. of Air Force, supra, Mead Data sought, under the FOIA, documents reflecting the Air Force's computerized legal research system. Citing exemption 5, the District Court held some of the documents exempt under the attorney-client privilege and others exempt as intra-agency memorandums. The D.C. Circuit reversed. The Court rejected the government's reliance on the attorney-client privilege because the documents in question had been shown to West Publishing Company, a third party, with whom the Air Force had been negotiating. In order to claim that the documents are exempt:

It must * * * be demonstrated that the information is confidential. If the information has been or is later shared with third parties, the privilege does not apply.

Id. 184 U.S.App.D.C. at 361, 566 F.2d at 253 (footnotes omitted).

The Court also dismissed the government's contention that the documents were exempt from disclosure as protected intra-agency communications. The Court noted, as the government had conceded, that the documents contained negotiations between the Air Force and West Publishing Company. The Court then discussed the applicability of exemption 5:

(N)either of the policy objectives which exemption five is designed to serve avoiding premature disclosure of agency decisions and encouraging the free exchange of ideas among administrative personnel is relevant to a claim of secrecy for a proceeding between an agency and an outside party. All of the information * * * has already been fully disclosed to at least one party outside the Department West itself and the Department has no control over further disclosure.

Id. 184 U.S.App.D.C. at 365, 566 F.2d at 257-258.

Similarly, when the documents in this action were released to Audubon's counsel, the government's assertion that these communications were confidential was rendered substantially less credible.⁸ 

Requiring the agencies in this action to make the same type of disclosure of the requested documents to the State of North Dakota as has been heretofore made to the counsel for the National Audubon Society will not, in our view, impede the proper functioning of the administrative process or inhibit the free and frank exchange of opinions among government personnel. The government has already indicated a diminished expectation of privacy concerning these documents through its prior voluntary disclosure.

The selective disclosure exhibited by the government in this action is offensive to the purposes underlying the FOIA and intolerable as a matter of policy. Preferential treatment of persons or interest groups fosters precisely the distrust of government that the FOIA was intended to obviate. The problem is exacerbated in this action because Audubon's interests are antagonistic to the State of North Dakota.

For the foregoing reasons, we reverse the judgment of the District Court and remand for further proceedings consistent with this opinion.⁹