Conservation Foundation v. Department of the Interior

Civil No. 718-72 (D.D.C. June 21, 1972)

After in camera inspection, the district court orders Interior, pursuant to the Freedom of Information Act (FOIA), to produce certain portions of the $6.8 million National Outdoor Recreation Plan which had been scheduled for release in 1968. Interior argues (i) that FOIA exemption (5) for "inter-agency memoranda" protests the Plan from disclosure and, (ii) that the Conservation Foundation has not exhausted its administrative remedies. The court rejects both arguments. Conservation Foundation's unanswered written demands for the Plan evince adequate exhaustion. Because FOIA provides for trial de novo in the district court, it is not necessary to give the usual degree of deference to administrative determinations. Concerning exemption (5) for "inter-agency memoranda," the court holds that "purely factual" information which is not "inextricably intertwined with policy making processes" is not shielded from disclosure.

Counsel for Plaintiff
Gladys Kessler
1712 N Street, NW
Washington, D.C. 20036

Counsel for Defendants
Harlod H. Titus, Jr. U.S. Attorney
Joseph M. Hannon Asst. U.S. Attorney
Arnold Aikens Asst. U.S. Attorney
Justice Department
Washington, D.C. 20530

[2 ELR 20357]

Gasch, J.

ORDER

This is an action under the Freedom of Information Act, 5 U.S.C. § 552, to enjoin the defendants from withholding the Nationwide Outdoor Recreation Plan from the plaintiff and to order the defendants immediately to produce such document for inspection and copying by the plaintiff.

The government, in response to plaintiff's motion for summary judgment, has moved to dismiss or alternatively for summary judgment on the grounds that plaintiff has failed to exhaust its administrative remedies and that the document is exempted from disclosure under 5 U.S.C. § 552(b)(5).

At the outset the Court feels compelled to comment upon what it deems to be an anomalous situation with regard to the litigants in this action. Plaintiff Conservation Foundation is under contract to the Department of Interior to do a comprehensive study of problems and issues confronting the National Park System and an analysis of its future objectives, goals and needs; by the terms of the contract the Foundation's final report must be submitted by August 15, 1972. For several years the Department of Interior has been engaged in a project pursuant to a directive from Congress to formulate and maintain a comprehensive nationwide outdoor recreation program. To date a sum in excess of $6 million dollars has been expended by Interior on this project, and it is the fruits of this study which plaintiff seeks to obtain. While no showing of need is imposed upon a plaintiff in a Freedom of Information Act case, it seems strange indeed that a consultant to an agency is denied access to information in the possession of the agency which is relevant to the consultant's function and might well avoid an unnecessary duplication of efforts.

With respect to the exhaustion issue, the Court notes that plaintiff's first written demand for the Plan was made on November 12, 1971, and that several subsequent requests were made. There is no indication in the record that defendant has ever responded to this request in writing; however, officials of the Foundation indicate by affidavit that they were orally informed by officials of the Department that the Plan could not be released. In March and April, 1972, plaintiff requested review of this denial by letters to the Secretary and Solicitor of the Department. With due regard for the internal procedures and deliberative processes of the agency, the Court feels that plaintiff has adequately pursued its administrative remedies. It has been noted that the "Act rejects the usual principle of deference to administrative determinations by requiring a trial 'de novo' in the district court." Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971). Accordingly, the policy considerations underlying the exhaustion doctrine are less compelling in these circumstances. See McKart v. United States, 395 U.S. 185 (1969).

The government also relies on 5 U.S.C. § 552 (b) (5), which exempts from the Act "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." That exemption is designed to protect and preserve the decision making process but does not reach material which is purely factual in nature.

To support itscontention that the documents are discoverable and therefore outside the § 552 (b) (5) exemption, the plaintiff introduced at the hearing affidavits to the effect that the Plan had been produced pursuant to Fed. R. Civ. P. 34 in connection with environmental litigation now pending in the District Court for Oregon. It appears from the affidavit, however, that the Court provisionally admitted the documents and ordered them sealed pending further order of the Court. It is the opinion of this Court that the facts set forth in the affidavits do not warrant the extraordinary step of granting discovery of the documents in their entirety in this case. Sterling Drug, Inc. v. F.T.C., 450 F.2d 698, 705 (D.C. Cir. 1971).

The Court has conducted an in camera inspection of the documents and has concluded that the factual information contained therein is not "inextricably intertwined with policy making processes." Soucie v. David, supra, at 1078. The remaining portion, however, reflects opinions and recommendations as to policies and actions to be taken which have been or will be submitted to other agencies of the executive branch for their consideration.¹ Accordingly, plaintiff's motion for summary judgment is granted in part and denied in part, and it is by the Court this 21st day of June, 1972.

ORDERED that defendant shall produce for inspection and copying Chapter 1, that part of Chapter 2 from page 2-1 to the heading Action Program on page 2-7, and Chapters 3 through 7 of the revised plan entitled The Recreation Imperative, The Nationwide Ourdoor Recreation Plan — 1970.

1. Soucie v. David, supra, at 1077; Ackerly v. Lev, 420 F.2d 1330, 1341 (D.C. Cir. 1969).