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Maricopa Audubon Soc'y v. U.S. Forest Serv.

ELR Citation: 27 ELR 20845
Nos. 95-17107, 108 F.3d 1089/(9th Cir., 03/07/1997)

The court holds that exemption 5 of the Freedom of Information Act (FOIA) exempts the U.S. Forest Service from disclosing two documents relating to its investigation of the Southwestern Regional Forester's and Deputy Forester's allegedly illegal and unethical management of the region. The court first holds that although an agency may not satisfy its burden of proof simply by producing the withheld materials for in camera review, the Forest Service met its burden of proof through the introduction of materials that were adduced in open court. The nature and subject matter of the withheld materials—the Regional Forester's letter in his defense and a report by an independent investigator—were entirely clear to plaintiff-appellants as well as to the district court. The court next holds that a continuing process of agency self-examination is not enough to render a document "predecisional" within the meaning of exemption 5. Instead, the agency must identify a specific decision to which the document is predecisional. The court holds that the two documents are "predecisional" because the Chief of the Forest Service relied on them in deciding what action, if any, he was obligated to take in response to the allegations. The court's inability to identify the actual decision that was made does not alter the fact that the withheld materials were prepared in order to assist an agency decisionmaker in arriving at a decision. The court also holds that the redacted portions of the two documents satisfy the requirement that the documents be "deliberative." They consisted of recommendations and suggestions from an inferior to a superior that reflected personal opinions of the writer rather than the policy of the agency. And the circumstances, when combined with an examination of the materials that were made available, are sufficient to establish that disclosure of the redacted documents would be likely in the future to stifle honest and frank communication within the agency.

Counsel for Plaintiffs
Matthew Kenna
Kenna & Associates
1300 Meadow Rd., Durango CO 81301
(970) 385-6941

Counsel for Defendants
Michael Johns, Ass't U.S. Attorney
U.S. Attorney's Office
4000 U.S. CtHse.
230 N. First Ave., Phoenix, AZ 85025

Before: BOOCHEVER, REINHARDT, and RYMER, Circuit Judges.