Department of the Interior v. Klamath Water Users Protective Ass'n

No. 99-1871 (121 S. Ct. 1060) (U.S. March 5, 2001)

ELR Digest

The Court holds that documents passing between Native American tribes and the U.S. Department of the Interior (DOI) are not exempt from the Freedom of Information Act's (FOIA's) disclosure requirements as intraagency communication that would normally be privileged in civil discovery. The documents at issue arose from two separate proceedings addressing Native American tribal interests subject to state and federal water allocation proceedings. In the first proceeding, the DOI, acting through the Bureau of Reclamation, asked Native American tribes to consult on a regional irrigation project. In the second proceeding, the DOI, acting through the Bureau of Indian Affairs, filed claims on behalf of one tribe in a state water rights adjudication. Subsequently, a water users association filed a series of FOIA requests seeking access to communications between the DOI and the tribes. The DOI submitted several documents but claimed others were covered under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which exempts from disclosure interagency or intraagency memorandums or letters that would not be available by law to a party other than an agency in litigation with another agency.

The Court holds that the documents at issue are not exempt from FOIA's disclosure requirements as interagency or intraagency memorandums or letters. To qualify for the exemption, a document must satisfy two conditions: its source must be a government agency, and it must fall within the ambit of a privilege against discovery under judicial standards for litigation. Although neither the terms of the exemption nor the statutory definitions say anything about communications with outsiders, some courts of appeal have held that in some circumstances a document prepared outside the government may qualify as an intraagency memorandum under Exemption 5. Typically, courts taking this stance have held that the exemption extends to communication between government agencies and outside consultants hired by them, where the documents prepared by the consultants played the same part in the agency's process of deliberation as documents prepared by agency personnel. In those cases, the consultant does not represent an interest of its own when it advises an agency. Conversely, the tribes necessarily communicate with the DOI with their own interests in mind. Moreover, the tribes are self-advocates who, at the expense of others, seek benefits inadequate to satisfy everyone. In fact, all of the tribes' submissions to the DOI represent the tribes' interests and, thus, are adversarial to the water users association's interests. As a result, the tribes' position as a DOI beneficiary is a far cry from the position of the paid consultant. In addition, there is no support in FOIA for the Court to read an "Indian trust" exemption into the statute.

Justice Souter wrote the opinion for a unanimous Court.

[A prior decision in this litigation is published at 30 ELR 20061.]

The full text of this opinion is available from ELR (14 pp., ELR Order No. L-344).

Counsel for Petitioners
Margo D. Miller
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Respondent
Peter S. Glaser
Doherty, Rumble & Butler
1401 New York Ave. NW, Ste. 1100, Washington DC 20005
(202) 393-2554

[31 ELR 20501]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]