Appeal from the United States District Courtfor the District of OregonMichael R. Hogan, Chief District Judge, PresidingArgued and SubmittedMarch 3, 1999--Portland, OregonFiled August 31, 1999Before: Andrew J. Kleinfeld and Michael Daly Hawkins,Circuit Judges, and William W Schwarzer,*Senior District Judge.Opinion by Judge Schwarzer;Dissent by Judge HawkinsSUMMARY
______________________COUNSEL Andrew M. Hitchings, DeCuir & Somach, Sacramento, Cali-fornia, for the plaintiff-appellant.Matthew M. Collette, United States Department of Justice,Washington, D.C., for the defendants-appellees.
_____________________________OPINION SCHWARZER, Senior District Judge:The question before us is whether documents submitted byIndian Tribes at the request of the Department of the Interiorin the course of consultation over ongoing administrative andadjudicative proceedings involving water rights and alloca-tions affecting the Tribes' interests are exempt under the Free-dom of Information Act as "inter-agency or intra-agencymemorandums or letters . . . ." 5 U.S.C. S 552(b)(5) (1994).FACTUAL BACKGROUNDKlamath Water Users Protective Association (the"Association") brought this action under the Freedom ofInformation Act ("FOIA"), 5 U.S.C. S 552, against theDepartment of the Interior (the "Department") and its constit-uent agency, the Bureau of Indian Affairs ("BIA"), see 25U.S.C. S 1. The Association is a nonprofit association ofwater users in the Klamath River Basin who receive waterfrom the Klamath Project (the "Project"), a federal reclama-tion project administered by the Bureau of Reclamation("Reclamation"), an agency within the Department. See 43U.S.C. S 1457 (1994). Members of the Association, most ofwhich are public agencies, such as irrigation districts holdingcontracts with Reclamation, receive water from the Project, asdo the Klamath Basin Tribes. Those Tribes include the Klam-ath Tribes, with fisheries located near Upper Klamath Lake,and the Yurok, Hoopa Valley, and Karuk Tribes, with fish-eries on the Klamath River. The former Tribes havedemanded that the Department maintain high lake levels toprotect their fisheries, while the latter Tribes have demandedincreased releases to the Klamath River to benefit their down-stream fisheries. The Tribes' demands, if satisfied, would leadto reduced water allocations to members of the Associationand have been protested by Association members who fearwater shortages and economic injury in dry years.In 1995, Reclamation announced its intention to prepare aplan for long-term operation of the Project, the Klamath Proj-ect Operation Plan ("KPOP"). The purpose was to enable theProject to operate in conformity with the Department's vari-ous legal obligations in wet as well as dry years. The Depart-ment hired a consulting firm and held a series of meetingswith interested parties. The meetings disclosed substantial dis-agreements among irrigation interests and the Tribes, leadingthe irrigation interests to fear that their water allocationswould be cut. Although a draft KPOP was to be prepared forpublic comment in 1996, none has so far been released.In connection with the development of the KPOP, theDepartment entered into an agreement with the KlamathBasin Tribes to provide consultation and cooperation to assistit in fulfilling its trust obligations. In a separate matter, theDepartment also filed claims on behalf of the Klamath Tribesin a water rights adjudication process established by the Stateof Oregon. This adjudication will quantify water rights,including those of the Klamath Tribes, in the Klamath RiverBasin.The Association made several FOIA requests of the BIAfor documents provided to or received from the KlamathBasin Tribes pertaining to water resources issues in the Klam-ath River Basin in order to discern what information wasbeing exchanged during the preparation of the draft KPOPoutside the public process. The Department released somedocuments, but withheld others. After the filing of this action,more were from time to time released and the Associationwithdrew its request for others. In the end only seven docu-ments remained in dispute. They are listed in the Vaughnindex submitted by the Department and are described asmemoranda provided by the tribes to the Department for usein the development of the KPOP, a memorandum from theDepartment concerning the government's trust obligations indeveloping the KPOP, and memoranda from the tribes to theDepartment addressing claims in the water rights adjudica-tion.The district court granted the Department's motion forsummary judgment. Insofar as relevant to our disposition, thedistrict court held that the documents "qualif[ied] as inter-agency or intra-agency documents under the `functionaltest,' " citing Formaldehyde Inst. v. Department of Health andHuman Servs., 889 F.2d 1118 (D.C. Cir. 1989). It found thatthe documents "played a role in the agency's deliberationswith regard to the current water rights adjudication and/or theanticipated Plan of Operations. Most of the documents wereprovided to the agency by the Tribes at the agency's request."The district court distinguished Madison County v. Depart-ment of Justice, 641 F.2d 1036 (1st Cir. 1981), on the groundthat "the Tribes are not in current litigation with the govern-ment, but instead acted in the role of consultants " and that"[t]he government used all these documents in fulfilling theirtrust obligation, and as part of their decision making process."The Association appeals from the judgment. We have juris-diction of this appeal under 28 U.S.C. S 1291 and reverse.I. STANDARD OF REVIEWOrdinarily, review of summary judgment is de novo. InFOIA cases, however, because of their unique nature, we haveadopted a two-step standard of review. We first determinewhether the district court had an adequate factual basis uponwhich to base its decision. If so, we review the district court'sconclusion of an exemption's applicability de novo. SeeMinier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). Some of ourcases have applied the clearly erroneous standard to review ofa district court's final determination of whether a particulardocument is exempt under the FOIA. See, e.g., Rosenfeld v.United States Dep't of Justice, 57 F.3d 803, 807 (9th Cir.1995); Frazee v. United States Forest Serv., 97 F.3d 367, 370(9th Cir. 1996); Maricopa Audubon Soc'y v. United StatesForest Serv., 108 F.3d 1082, 1085 (9th Cir. 1997). As weexplained in Schiffer v. FBI, 78 F.3d 1405, 1409 (9th Cir.1996), application of that standard is appropriate in the com-mon FOIA case where the district court's findings of facteffectively determine the legal conclusion. We recognized,however, that where the adequacy of the factual basis is notdisputed, the district court's legal conclusion whether theFOIA exempts a document from disclosure is reviewed denovo. See id. This appeal raises no factual issues. The ques-tion presented, whether the fiduciary and consultant relation-ship between the Department and the Tribes qualifies thedisputed documents under the FOIA's threshold inter/intraagency test, is one of law. Accordingly, our review is denovo.II. APPLICATION OF THE FOIA[1] The FOIA "does not apply to matters that are-- . . . (5) 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 . . . .S 522(b)(5). We must apply this exemption consistently withour holdings that the FOIA " `mandates a policy of broad dis-closure of government documents.' " Maricopa, 108 F.3d at1085 (quoting Church of Scientology v. Department of theArmy, 611 F.2d 738, 741 (9th Cir. 1980)). When a request ismade, an agency may withhold a document only if it fallswithin one of the nine statutory exemptions in S 522(b) andthese exemptions " `must be narrowly construed' in light ofthe FOIA's `dominant objective' of `disclosure, notsecrecy.' " Id. (quoting Department of the Air Force v. Rose,
425 U.S. 352, 361
(1976)). "FOIA imposes on agencies theburden of proving that withheld materials are exempt fromdisclosure." Id.The Department contends that the documents at issue,involving communications between the Tribes and theDepartment concerning the development of the KPOP and theOregon water rights adjudication, meet the "functional test"of Exemption 5 for inter-agency/intra-agency communica-tions. It rests its contention on the fact that to fulfill its fidu-ciary responsibility to protect and manage the naturalresources of the Indian Tribes, it entered into a Memorandumof Agreement with the Tribes acknowledging their consulta-tive role in these two matters.The Department places principal reliance on FormaldehydeInst. v. Department of Health and Human Servs., 889 F.2d1118 (D.C. Cir. 1989). That case involved the application ofExemption 5 to a peer review letter received by the Centersfor Disease Control ("CDC"), an agency within the Depart-ment of Health and Human Services, from a professional jour-nal. The journal had reviewed a report submitted by anagency employee, determined not to publish the report, andthen forwarded the peer review letter to the agency. TheFormaldehyde Institute requested copies of all records ofagency contacts with the journal relating to publication orrejection of the report. The agency rejected the request, rely-ing principally on Exemption 5. The court of appeals reversedjudgment for the Institute. Its opinion is largely devoted todetermining that the peer review letter was predecisional andpart of the deliberative process. But it also held that the peerreview letter qualified under the inter-agency/intra-agencytest. Quoting from its prior decision in CNA Fin. Corp. v.Donovan, 830 F.2d 1132, 1161-62 (D.C. Cir. 1987), which, inturn, relied on Ryan v. Department of Justice , 617 F.2d 781(D.C. Cir. 1980), it held that " `[w]hether the author is a regu-lar agency employee or a temporary consultant is irrelevant;the pertinent element is the role, if any, that the documentplays in the process of agency deliberations.' " SeeFormaldehyde, 889 F.2d at 1118. In Ryan, the court had saidthat "[w]hen an agency record is submitted by outside consul-tants as part of the deliberative process, and it was solicitedby the agency, we find it entirely reasonable to deem theresulting document to be an `intra-agency' memorandum forpurposes of determining the applicability of Exemption 5."Ryan, 617 F.2d at 790. More recently, the court held thatcommunications mandated by statute between the NationalArchives and former Presidents relating to access to theirpresidential records are within Exemption 5. Public Citizen,Inc. v. Department of Justice, 111 F.3d 168, 170-71 (D.C. Cir.1997).[2] This court has not yet had occasion to address the reachof the inter-agency/intra-agency test under Exemption 5 andto determine whether the expansive interpretation adopted bythe District of Columbia Circuit is consistent with the policyof broad disclosure on which the FOIA is anchored. We neednot reach the issue here because this case differs in a materialrespect from those on which the Department relies. Here, theTribes with whom the Department has a consulting relation-ship have a direct interest in the subject matter of the consul-tations. The development of the KPOP and the Oregon waterrights adjudication will affect water allocations to the Tribesas well as those to members of the Association. While theTribes and the Association may not be engaged in conven-tional adversary litigation, they assert conflicting claims in acontentious proceeding involving the Department. The docu-ments at issue are relevant to those claims. Thus, this case dif-fers from Public Citizen, Inc. v. Department of Justice, onwhich the Department relies, in that it presents not simply"the potential for an adversary relationship" but a clear andpresent conflict with respect to the subject matter of the docu-ments, which is for the Department to resolve. See 111 F.3dat 171 ("At some point, of course, features of the other rela-tionships (above all, a possible future adversary one) mightcome to eclipse the consultative relationship . . . .").[3] We have held that documents submitted to an agency bypersons outside the government as part of an administrativeproceeding are not internal agency documents exempt fromdisclosure. See Van Bourg, Allen, Weinberg & Roger v.NLRB, 751 F.2d 982, 984-85 (9th Cir. 1985) (affidavitsdescribing union practices, officials and members submittedas part of an NLRB unfair labor practice investigation notwithin Exemption 5). The Department distinguishes theinstant case on the ground that it had requested the advice ofthe Tribes. But that distinction makes no difference because,as County of Madison v. United States Dep't of Justice, 641F.2d 1036, 1040 (1st Cir. 1981), holds in a similar context,consultation with the tribes is not similar to " `the advice fromstaff assistants and exchange of ideas among agency person-nel' that forms the object of exemption five," which exemp-tion is limited to "interagency or intra-agency memorandumsor letters." In County of Madison, the court held that commu-nications between an Indian tribe and the Department of Jus-tice in an unsuccessful effort to settle litigation between themdid not qualify as inter-agency/intra-agency documents. It dis-tinguished cases such as Ryan from the case before it inwhich, "by contrast, the Oneidas approached the governmentwith their own interest in mind. While they came to parley,they were past and potential adversaries, not cooptedcolleagues." Id. While it is true that the Department requestedthe advice of the Tribes, the matters with respect to which itsought advice were matters in which the Tribes had their owninterest and the communications presumptively served thatinterest, even if they incidentally benefited the Department.Thus, we conclude that even were we to take an expansiveview of the inter-agency/intra-agency test, these documentsdo not qualify for exemption.[4] To hold otherwise would extend Exemption 5 to shieldwhat amount to ex parte communications in contested pro-ceedings between the Tribes and the Department. Rejection ofsuch an extension does not conflict with the Department'sfiduciary obligations to the Tribes. See United States v. Cher-okee Nation,
480 U.S. 700, 707
(1987). The Department exer-cises its regulatory powers in the context of the governingstatutes; while it must act in the interests of the tribes, it maynot afford them greater rights than they would have under theregulatory scheme. See Skokomish Indian Tribe v. FederalEnergy Regulatory Comm'n, 121 F.3d 1303, 1308 (9th Cir.1997). Indeed, the 1994 Presidential Memorandum directingthe heads of all executive departments and agencies to consultwith tribal governments prior to taking actions that affectthem specifically, provides that "[a]ll such consultations areto be open and candid so that all interested parties may evalu-ate for themselves the potential impact of relevant proposals."3 C.F.R. 1007 (1995). And a corresponding directive issuedby the Secretary of the Interior in 1993 contains the identicalmandate. See United States Dept. of the Interior, Protectionof Indian Trust Resource Procedures app. Order No. 3175(1993).[5] Because the documents fail to meet the threshold inter-agency/intra-agency test, we need not reach the other issuesraised by the Association. The judgment is REVERSED.REVERSED.HAWKINS, Circuit Judge, dissenting:The majority, in an effort which marginally advances thecause of open government, winds up punishing entities thegovernment has a fiduciary duty to protect. For the reasonsthat follow, I would affirm the judgment of the district courtthat the documents at issue should remain protected from theprying eyes of outsiders to the trust relationship betweenNative American Tribes and the Department of Interior.We are asked here to review the district court's findingsthat these particular documents, in their entirety, are exemptedfrom disclosure under the Freedom of Information Act("FOIA") by FOIA's exemption five. Although, in its ownwords, the Bureau of Indian Affairs ("Bureau") and otherInterior Department Agencies have provided it with"numerous documents" pursuant to its FOIA request, theKlamath Water Users Protective Association ("Association"),a non-profit corporation whose membership consists mainlyof irrigation districts, continues to seek the release of theseseven documents. Six of the seven documents in questionwere exchanged between the Bureau and the Klamath BasinIndian Tribes1 ("Klamath Basin Tribes" or "Tribes") in rela-tion to consultation on the natural resource rights of the Klam-ath Basin Tribes in the Klamath River Basin in northernCalifornia and southern Oregon. The remaining document isa communication between the Department's Office of theSolicitor and a Tribe, in relation to an Oregon state proceed-ing in which the Department is mandated to press naturalresources claims on behalf of affected Tribes.The dispositive factor in this appeal, according to themajority, is that the Klamath Basin Tribes have a "directinterest" in the subject of their natural resource rights, andthus communications between the Tribes and the InteriorDepartment can never fall within any reading of exemptionfive. In making the Tribes' "direct interest" the dispositivefactor, however, I believe that the majority misreads and mis-applies FOIA case law.In deciding that these seven documents fail to meet thethreshold "inter-agency/intra-agency" test for exemption fromdisclosure under exemption five, the majority never considershow the documents were employed in decision making. Fun-damentally, the majority fails to recognize that the appropriateinquiry is an inquiry into the role a document plays in agencydecision making, not into the identity of its producer. If thistest were applied, I believe that the district court's conclusionthat these documents are protected would be shown to beentirely correct.Where the Bureau and Department are, by law, required torepresent the interests of Indian Tribes, the majority's holdingstands as a barrier to that representation. The majority impliesthat status as a federally recognized Indian Tribe, and the U.S.government's trust responsibilities to the Tribes, create not acooperative, but an adversarial relationship between the gov-ernment and the Tribe, and thus FOIA can be used to destroyany opportunity for "open and honest" consultation betweenthem. I have great respect for the majority and its author, butI simply cannot agree with a notion I think so fundamentallywrong.FACTSThe Klamath Basin Tribes have natural resources rightstied to the waters of the Klamath River and Lake. See, e.g.,United States v. Adair, 723 F.2d 1394 (9th Cir. 1984) (Klam-ath Tribes). In the past, the Klamath Basin Tribes haveasserted these water rights to protect two species of fish in theUpper Klamath Lake, and to benefit tribal fisheries in the Cal-ifornia stretches of the Klamath River.The United States government and its agencies have a cleartrust responsibility to protect Tribal natural resources. SeeUnited States v. Cherokee Nation,
480 U.S. 700, 707
(1987).Pursuant to Presidential and Departmental directives, all agen-cies within the Interior Department are required to "consultwith tribes on a government-to-government basis wheneverplans or actions affect tribal trust resources." Department ofthe Interior, Departmental Manual: Part 512 American Indianand Alaska Native Programs, Departmental Responsibilitiesfor Indian Trust Resources S 2.2 (1995). In spite of such con-sultation, the Tribes have not always agreed with the Bureauof Reclamation, an agency of the Interior Department, in itsdecisions allocating Klamath waters and at one point threat-ened to sue under the Endangered Species Act to protect fish.The Bureau of Reclamation administers the Klamath Irriga-tion Project ("Klamath Project"), which uses the waters of theKlamath to irrigate over 200,000 acres in Klamath County,Oregon and two northern California counties, mainly for agri-cultural purposes. The Association's interest in the Klamath'swaters springs from its membership which is composed in themain of irrigation districts who have entered into contractswith the Bureau of Reclamation to deliver water from theKlamath Project.2 While the Bureau of Reclamation has obli-gations under the Reclamation Act and contract to these irri-gators, it owes them not the slightest fiduciary duty, orobligation to assert their claims. See Nevada v. United States,
463 U.S. 110
(1983) (finding obligations under ReclamationAct to project irrigators, but obligations to Indian Tribesgrounded in trust responsibility); Filings of Claims for WaterRights in General Stream Adjudications, 97 Interior Dec. 21(1989) (concluding that while United States is obligated tomake filings in stream adjudications on behalf of projectwater rights to which it holds legal title, it is not required tomake filings or present evidence on behalf of individual waterusers). 1. The Klamath Project Operation PlanThe triggering event for the Association's FOIA requestwas the 1995 announcement that the Department would bedeveloping a long-term plan for operation of the KlamathProject, known as the "KPOP." Multiple agencies within theDepartment, including the Bureau of Reclamation, the Bureauof Indian Affairs, the Biological Resources Division, theNational Marine Fisheries Service, and the Office of theSolicitor have been jointly involved in the process. Publicmeetings were held to allow public participation in the plan-ning process, and were attended by Interior Department per-sonnel, Tribal representatives, environmental groups,members of the Association, and state agencies.Besides the public meeting process, the Department hasalso separately consulted with the Klamath Tribes on theoperation plan as part of its obligation to protect the Tribes'trust resources whenever a potential impact on resourcesmight occur. The Association has no legitimate role in thisconsultation. Nor was the fact of it hidden from these parties:it was made visibly apparent on an information sheet distrib-uted to publicize the planning process. The Department andTribes entered into a "Memorandum of Agreement for theGovernment-to-Government Relationship in the Developmentof the Klamath Project Operations Plan" ("Memorandum ofAgreement") which formalized the consultation commitment,and allowed participation by the tribal governments in"planning and managing the trust resource base."The Department has not yet completed the KPOP. A draftplan was produced in 1996, but never released. 2. The Oregon Water Rights AdjudicationThe Bureau also represents some of the Klamath Tribes inOregon state proceedings to adjudicate all claims to surfacewater in the Klamath River Basin in Oregon. These proceed-ings were initiated by the Oregon Water Resources Depart-ment pursuant to Oregon law. As well as asserting its ownclaims, the United States has an obligation to assert the rightsof the Tribes. See United States v. White Mountain ApacheTribe, 784 F.2d 917, 920 (9th Cir. 1986). While these pro-ceedings are not covered by the Memorandum of Agreement,the tribes have been extensively consulted in the process ofdetermining the scope of the Tribes' water rights claims, andlegal theories that could be advanced on their behalf. Otherfederal agencies have also filed water rights claims, as haveprivate parties. 3. The FOIA RequestIn 1996, the Association submitted FOIA requests to theBureau seeking communications exchanged between theBureau and the Tribes during the time period the draft KPOPwas being prepared and reviewed. Unhappy with the informa-tion released by the Bureau, the Association filed this actionseeking further disclosure pursuant to FOIA. In the course ofthe litigation, the Bureau released more documents, and theAssociation dropped its requests for others, leaving only theseseven documents at issue.Based on its findings regarding the role the documentsplayed in agency deliberations, as well as on the consultativerelationship that trust responsibilities and the Memorandum ofAgreement established with the Tribes, the court below con-cluded that these seven documents fall within the exemptionfrom disclosure provided by exemption five.Document 3, FOIA Appeal 96-168, is a fax from the Klam-ath Tribes to the Bureau that contains a position paper on thewater rights of the tribes. An affidavit from a Bureauemployee stated that the Department had requested the posi-tion paper for use in departmental deliberations about theadjudication, and trust responsibilities in developing theKPOP. The court below found that disclosure would"discourage candid discussions within the Department" and"undermine the Department's ability to address water rightsissues concerning the tribes."Document 6, FOIA Appeal 96-168, is the only documentfrom the Bureau to the Klamath Basin Tribes. It is a draftmemo prepared by a Bureau employee that was circulated totwo other Bureau employees and two Tribal attorneys propos-ing draft language to explain the Bureau's responsibilities fortrust assets in the KPOP process. The court below found thatthe document was used pursuant to consultation with thetribes, relied upon in agency deliberations, and that disclosurewould discourage inter-departmental discussion and harm thedevelopment of the operations plan.Document 10, FOIA Appeal 96-168, is a fax from a Klam-ath tribal attorney to a Bureau employee expressing views ontrust resources, especially fish. An affidavit by the Bureauemployee receiving the fax established that he had requestedthe document and used it in his work preparing for the devel-opment of the KPOP. The court below again found that thedocument had been obtained pursuant to consultation with thetribes, relied upon by agency personnel in deliberations, andthat disclosure would discourage inter-departmental discus-sion and harm the development of the operations plan.Document 16, FOIA Appeal 96-201, is a letter from aKlamath tribal attorney expressing views on the tribe's waterrights claim in the adjudication. An affidavit from a Depart-ment employee established that the Office of the Solicitorasked for the information and used it to prepare for the waterrights adjudication. The court below again found that the doc-ument had been obtained pursuant to consultation with thetribes, been relied upon by Departmental personnel in deliber-ations, and that disclosure would discourage inter-departmental discussion.Document 20, FOIA Appeal 96-201, is also a letter fromthe Klamath Tribes to the Bureau concerning water rights,used to prepare for the water rights adjudication. The courtbelow again found that the document had been obtained pur-suant to consultation with the tribes, relied upon by theBureau in its deliberations, and that disclosure would discour-age inter-departmental discussion and harm the developmentof the operations plan.Document 25, FOIA Appeal 96-201, is a letter from aKlamath tribal attorney to the Bureau on water rights that alsoincludes a tribal resolution. Affidavits by Bureau employeesagain establish that this document was requested by theBureau to assist in preparing for the water rights adjudication.The court below made the same findings in relation to thisdocument as to the others, and also found that disclosurewould "expose sensitive litigation positions" of the Depart-ment in the adjudication.Document 27, FOIA Appeal 96-201, is a memo from aKlamath Tribes biologist to a Bureau employee discussingbiological factors that may affect trust resources such as fish.Affidavits again establish that the Bureau requested and usedthis document to develop the KPOP. The court below madethe same findings in relation to this document as to the others,and also found that disclosure would "expose technical opin-ions deemed critical to analyzing the extent of the Depart-ment's trust responsibility."ANALYSISThe Association argues that withholding these seven docu-ments "unfairly and unduly disadvantage[s] " the Associationand its members in their ability to participate in the KPOPprocess. The Department argues that the district court wascorrect in finding that the documents fall within FOIA exemp-tion five as inter-agency or intra-agency communications,because the Tribes are in effect "consultants " to the Bureau onthe issue of Tribal natural resource rights, and that releasingthe documents would chill the agency's ability to make policydecisions.The crucial question is the interpretation and applicabilityof exemption five to these documents, in these circumstances.3Exemption five exempts from public disclosure "inter-agencyor intra-agency memorandums or letters which would not beavailable by law to a party other than an agency in litigationwith the agency." 5 U.S.C. S 552(b)(5). While, like all FOIAexemptions, we narrowly construe exemption five, see VanBourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982 (9thCir. 1985), we also recognize that it "incorporates theattorney-client privilege, the attorney work-product privilege,and the executive `deliberative process' privilege that protectscandid internal discussion of legal or policy matters."Maricopa Audubon Soc'y v. United States Forest Serv. , 108F.3d 1082, 1083 n.1 (9th Cir. 1997).In considering the applicability of the "deliberativeprocess" privilege contained within exemption five -- theprivilege mainly at stake in this case -- this court has usuallyfound itself engaged in a two step process: (1) determiningwhether a document is "predecisional," and, if so; (2) deter-mining whether it is "deliberative." See, e.g., Maricopa Audo-bon Soc'y v. United States Forest Serv., 108 F.3d 1089, 1093(9th Cir. 1997); Assembly v. United States Dep't ofCommerce, 968 F.2d 916, 920 (9th Cir. 1992); National Wild-life Fed'n v. United States Forest Serv., 861 F.2d 1114, 1117(9th Cir. 1988); Federal Trade Comm'n v. Warner Communi-cations Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). In thisinstance, however, the majority's decision rests on a morebasic challenge to the applicability of the exemption -- achallenge to whether the documents in question are "inter-agency or intra-agency."At first glance, the majority's decision that the documents-- which no one disputes were exchanged between the Klam-ath Tribes and the Bureau -- are not "inter-agency or intra-agency" documents seems entirely logical. The KlamathTribes are not agencies of the federal government, and wouldprobably strongly resist characterization as such.Exemption five has not been so narrowly construed, how-ever, by this court or by others. The purpose behind exemp-tion five is the promotion of quality governmental decisionmaking by allowing free and independent debate during thecourse of decision making, without exposure of intermediateopinions and recommendations to the "fishbowl " of publicscrutiny. See Environmental Protection Agency v. Mink, 410U.S. 73, 87 (1973). Since an agency will often rely on"opinions and recommendations of temporary consultants, aswell as its own employees," Ryan v. Department of Justice,617 F.2d 781 (D.C. Cir. 1980), in its deliberative process,communications from these consultants, although not literallyinter-agency or intra-agency can be "an integral part of [theagency's] deliberative process." Id. at 789-90. Thus, this cir-cuit and others have recognized that documents created byoutside consultants that otherwise qualify as deliberative, pre-decisional agency documents may also shelter within exemp-tion five. See Van Bourg, 751 F.2d at 985 (stating thatdocuments prepared by outsiders with formal relationships toagencies may fall within exemption five); see also Public Cit-izen, Inc. v. Department of Justice, 111 F.3d 168 (D.C. Cir.1997); Formaldehyde Inst. v. Department of Health andHuman Serv., 889 F.2d 1118 (D.C. Cir. 1989); Brockway v.Department of Air Force, 518 F.2d 1184 (8th Cir. 1975); Wuv. National Endowment for Humanities, 460 F.2d 1030 (5thCir. 1972).In determining whether a document, or communicationfrom an outside consultant is part of the "deliberativeprocess" that exemption five is designed to protect, "the perti-nent element is the role, if any, that the document plays in theprocess of agency deliberations." CNA Financial Corp. v.Donovan, 830 F.2d 1132, 1161 (D.C. Cir. 1987); see alsoFormaldehyde Inst., 889 F.2d at 1123. The primary consider-ation is not the identity of the creator of the document, but"what harm, if any, the [document's] release would do to [theagency's] deliberative process." Id. This "functional test"covers circumstances "where an agency has `a special needfor the opinions and recommendations of temporaryconsultants,' " exempting documents with such informationfrom disclosure under FOIA. See State of Texas v. ICC, 889F.2d 59, 61 (5th Cir. 1990) (quoting Hoover v. United StatesDep't of the Interior, 611 F.2d 1132 (5th Cir. 1980)).The majority, however, holds that the seven documentshere in issue can never fall within any reading of exemptionfive of FOIA, because the Klamath Basin Tribes have a"direct interest" in the water and natural resource rights towhich the documents pertain. In my view, the majority errs inresting their decision on this "direct interest " and abandoningexamination of the function of these documents within theBureau's deliberative processes.The majority believes the Tribes' "direct interest" in naturalresource and water rights causes a conflict of interest thatmakes these documents function as tools of advocacy ratherthan consultancy. The majority is unclear, however, why this"direct interest" automatically disqualifies the documents foruse in agency deliberations -- whether the crux of the prob-lem is conflict between the Tribes and the Association, orconflict between the Tribes and the Department. While themajority states at one point that the Tribes and the Association"assert conflicting claims in a contentious proceeding," theyalso state that these are "contested proceedings between theTribes and the Department."4Regardless of where the majority means to fix this"conflict," the function of these documents was to aid indepartmental policy making, and the Tribes never exited theirrole of consultancy to become advocates. These documentsare not advocacy, but the written record of an agency's con-sultation of a knowledgeable source, whose rights the agencyis obligated to protect, in the process of making decisions asto how best to protect those rights.If the majority believes that the Tribes' direct interest innatural resource and water rights is problematic because theTribes and Association "assert conflicting claims in a conten-tious proceeding," the cases that the majority relies upon areinapposite. The existing case law, while relying on the role ofthe document in agency deliberations as the determinativefactor, looks not at conflict between competing claimantsbefore an agency, but at the existence of conflict between out-side entities and an agency in trying to determine that role.The "potential for an adversary relationship" raised inPublic Citizen, 111 F.3d at 171, was not a potentially adver-sarial relationship between Public Citizen and the formerPresident, but a potentially adversarial relationship betweenthe former Presidents and the Records Agency that the courtfound remained consultative. See id. Nor did the County ofMadison decision rest upon the adversarial relationshipbetween the County and the Oneida, but upon the adversarialrelationship -- litigation -- between the Department of Jus-tice and the Oneida. See County of Madison v. United StatesDep't of Justice, 641 F.2d 1036, 1040 (2d Cir. 1981).Moreover, this is not a case like Van Bourg where theagency is formally adjudicating a claim between two parties,and reviewing documents submitted by those private adverseparties to represent their positions in litigation, or a formalagency investigation. See Van Bourg, 751 F.2d at 985. Docu-ments submitted in such circumstances would indeed havebeen submitted in response to "a mere request forinformation" by the agency to allow it to make a determina-tion and could be viewed as advocacy, rather than being "aconsultation or solicitation of expert advice . . . sought for thepurpose of formulation of [agency] policy. " State of Texas,889 F.2d at 61. These documents were, instead, submitted atthe request of the Bureau in order to allow it to formulate aposition on the Klamath Basin Tribes' claims in the KPOPand the Oregon adjudication.The majority argues that the Tribes' direct interest in theirsubject matter makes unimportant that the Bureau requestedthese documents from the Tribes. With the analysis properlyfocused on the function of the documents, however, ratherthan on the identity of the consultant, the request shows thatthe Bureau and the Tribes were in a consultative, not adver-sarial relationship. Sharing proposed strategies, as several ofthe memos do, is not the action of parties in conflict.If the majority means to argue instead that these are"contested proceedings between the Tribes and theDepartment," while this position would be in line with exist-ing analysis of exemption five, the majority's analysisremains flawed. The Tribes and Bureau are not engaged in anadversarial relationship.Rather than being distinguishable, Public Citizen is highlypersuasive in establishing that exemption five does apply.Public Citizen directly rejects the majority's position that "adistinct and independent interest . . . makes [an outside entity]an adversary [to the agency] rather than a consultant." PublicCitizen, 111 F.3d at 171. Much as the Klamath Basin Tribeshave natural resource rights which the Bureau and Depart-ment have a duty to reconcile with other parties' claims towater, the ex-President has "rights and privileges" in recordsthat the Archivist has to reconcile with duties to the public tomake records available. See id. The mandated considerationthat the Bureau and Department have to give to the KlamathBasin Tribes' claims virtually requires that they consult theTribes, much as the Archivist consulted the ex-President, toseek their peculiar expertise concerning their rights, and howthey wish to assert them in the KPOP and Oregon adjudica-tion.The affidavits from Department and Bureau employees,accepted by the court below, confirm that these communica-tions spring from a relationship that remains consultativerather than adversarial, a relationship in which the Bureau andDepartment were seeking the expertise of the Tribes, ratherthan opposing them. Like the court in Public Citizen, whichrelied on a similar declaration by an Archives employeeexplaining that the communications with the ex-Presidentwere used to streamline the reconciliation of interests andensure rapid resolution, I believe that the "[t]he existence ofindependent . . . interests provides no basis for doubting thisexplanation." See id. I would find that in these circumstances"the potential for an adversary relationship is not enough tonegate one of consultation." Id. The communications betweenthe Tribes and the Bureau are, as the affidavits explain, com-munications aimed at allowing Bureau employees to under-stand the Tribes' natural resource rights and formulate policyaccordingly.County of Madison, a fundamentally different case, doesnot stand as a barrier to the application of exemption fiveeven under "an expansive view of the inter-agency/intra-agency test." There, the Oneida Tribe and the United Stateswere engaged in adversarial litigation, and the documents theUnited States sought to withhold were documents related tolitigation settlement negotiations. See County of Madison, 641F.2d at 1036, 1041-43. In such a situation of direct adversitybetween an agency and an outside party, documents are out-side of exemption five, especially where there is not a shredof deliberative process and participation. Cf. Van Bourg, 751F.2d at 985; State of Texas, 889 F.2d at 61. The Bureau andthe Klamath Tribes, in contrast, are not "past and potentialadversaries" at this point -- in many ways they have a rela-tionship akin to that of attorney and client.The majority ignores that the factor crucial to County ofMadison's holding was not that the Oneida had self-interestin mind in dealing with the Department of Justice, but that thedocuments in question were documents related to litigation inwhich the two were adversaries, rather than documents thatthe Department had requested to formulate policy, or assist indecision making. While the interests of the parties illuminatethe function of the documents in County of Madison, Countyof Madison was decided on that function, not on the"selfishness" of the Oneida's motives.As the First Circuit noted, "the line between supplicantsand consultants may not always be clear." County of Madison,641 F.2d at 1042. In this case, however, the Klamath BasinTribes and Bureau relationship is consultative rather than self-seeking supplication. The relationship, as well as the docu-ments here in question, are entirely different from those inCounty of Madison. These documents were not submitted inrelation to litigation, but as part of a cooperative, consultativerelationship mandated by Departmental policy and federallaw.Regardless of where the "conflict" is situated, or how weinterpret prior case law, the crux of the majority's unease isthat at some point the Department will have to balance therights of the Tribes and those of the Association's membersin allotting water in the KPOP. Thus, the majority perceivesallowing these communications to be kept from disclosureunder exemption five as, in some sense, allowing "ex parte"contact. In deciding this case on grounds prompted by thatconcern, however, the majority fails to recognize the implica-tions of the relationship between the Department and theTribes and the implications of its decision for that relation-ship.This does not mean, as the majority argues, allowing thetrust relationship would subvert FOIA and its goals. To thecontrary, just as the fiduciary relationship between the Tribesand the government is not enough alone to justify blanketapplication of exemption five, see Morongo Band of MissionIndians v. FAA, 161 F.3d 569, 574 (9th Cir. 1998) (trust rela-tionship, while creating fiduciary duties, does not extend togive tribes greater rights than others under general regulationsand statutes); Skokomish Indian Tribe v. FERC , 121 F.3d1303, 1308 (9th Cir. 1997), neither should the fiduciary rela-tionship be a barrier to the application of the exemption -- theend result of the majority's decision -- if the exemption'srequirements are otherwise fulfilled. The main thrust of thememos quoted by the majority is to improve communicationsbetween the tribes and the government as a part of strengthen-ing their unique relationship. The spirit behind that policy isnot carried out when we not only fail to recognize that rela-tionship, but use it to frustrate the use of this otherwise appli-cable FOIA exemption. I argue not for giving extra favoritismto the Tribes under an equally applicable law, but for the rec-ognition of the consequences of a true distinction betweentheir position and the positions of others vis-a-vis the Depart-ment in this matter.The Department and Bureau are mandated to bring claimsfor, and protect the interests of the Tribes in a way that theyare not required to act for the Association's members, or otherparties interested in the outcome of the KPOP. The Bureau isnot only the agency principally entrusted with relations withIndian Tribes in general, but in this situation it is mandated topresent claims on behalf of the Tribes in both the adjudicationand the KPOP proceedings. The Tribes' relationship to theBureau, and Department, is akin to an attorney-client or fidu-ciary relationship. Far from being in conflict with the Tribes,the Bureau in many ways functions as the Tribes' advocate.Because the Tribes and Association are not similarly situ-ated with regard to the Department, what is occurring is not"ex parte contact." Acknowledging this difference in relation-ships in our analysis of this case would not mean granting theTribes extra benefits under FOIA. FOIA does not require therelease of these documents, as it might communicationsbetween the Association's members and the Department,because the Tribes have a formal consultative relationship andthese documents are being used for predecisional, deliberativepurposes. See Van Bourg, 751 F.2d at 985.The majority's focus on "direct interest" rather than look-ing at the use, or function, of the documents is destructive inthis context, where the Tribes and the Bureau are closelylinked. This decision undermines the ability of the Bureau tofully understand and represent the Klamath Tribes in thesetwo proceedings, without really adding much to the cause offreedom of information. There is no strong reason to chipaway at that relationship in these circumstances.It is important to remember that the Bureau, with whom allbut one of these communications were exchanged, is not thefinal arbiter of water rights in either the KPOP or the Oregonadjudication. The Bureau is only one agency of manyinvolved in the formulation of the KPOP and in that processits role concentrated on safeguarding the interests of theTribes within the broader scheme of the KPOP. No positionthat the Bureau alone takes is likely to be taken as a given inthe KPOP, and accepted without dispute by the other agenciesin the Department.In the end, the Bureau's and the Department's final policyposition will become public -- both in the KPOP proceedingsand the adjudication. The Association and all others interestedwill find out that decision at an appropriate time, when therewill be a chance to challenge and discuss. The majority'sdecision, allowing the Association to leap-frog that process,gains little in the public exposure of information and losesmuch in terms of the ability of the Bureau to carry out its dutyto protect the rights of the Tribes. Because of this, andbecause I believe that the proper inquiry in this case shouldhave been an inquiry into the role the documents played inagency decision making, I dissent. the end
___________________________FOOTNOTES *The Honorable William W Schwarzer, Senior United States DistrictJudge for the Northern District of California, sitting by designation.1 The Klamath Basin Tribes include the Klamath Tribes, the YurokTribe, the Hoopa Valley Tribe, and the Karuk Tribe. Their interests are notalways in accord, as the Tribes located near Upper Klamath Lake wouldprefer high levels of water in the Lake, and those located on the KlamathRiver would prefer high levels in the River to protect their respective fish-eries, but they are generally adverse to the interests of irrigation districts-- some of whom are members of the Association -- who would preferthe waters be devoted to irrigation.2 The Association is not itself a contractor with the Klamath Project forwater. Most of its members, however, are irrigation districts and otherpublic agencies who contract with the Klamath Project for water alloca-tions. The members then resell the water to private individuals and firmsto irrigate commercial farming in Klamath County, Oregon and Modocand Siskiyou Counties in California.3 As the majority explains, while our standard of review of summaryjudgments under FOIA is unsettled, this threshold determination is subjectto de novo review as a question of law.4 If the majority means to characterize this case as the assertion by theTribes and the Association of "conflicting claims in a contentious proceed-ing involving the Department" creating a "clear and present conflict withrespect to the subject matter of the documents, which is for the Depart-ment to resolve," as a threshold matter, such a characterization fails to rec-ognize or address that at least four of the seven documents were used bythe Bureau and the Department to prepare to represent the Tribes' claimsin the Oregon water rights adjudication -- not a proceeding which eitherthe Bureau, or the Interior Department, has the authority to "resolve."