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5 U.S.C.S. § 552(b)(5) protects 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. To qualify, a document must thus 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 that would govern litigation against the agency that holds it.
The Freedom of Information Act (FOIA) (5 USCS 552) required that certain records held by a federal agency be made available to the public. Exemption 5 of FOIA exempted from this requirement "inter-agency or intra-agency memorandums or letters" which would be not be available by law to a party other than an agency in litigation with the agency. The United States Department of the Interior's Bureau of Reclamation (Reclamation) began to develop a plan for a project to allocate water among competing uses and competing users, including the Klamath Tribe and several other Indian tribes, in an area that included parts of Oregon and California. After the Department asked the tribes to consult with Reclamation concerning the water allocation plan, the parties created a memorandum of understanding between the Department and the tribes that called for assessment, in consultation with the tribes, of the impacts of the plan on tribal trust resources. At approximately the same time, the Department's Bureau of Indian Affairs (Bureau) filed claims on behalf of the tribes in an Oregon state-court adjudication intended to allocate water rights. The Bureau--which did not act as counsel for the Klamath Tribe, which had its own lawyers and independently submitted claims on its own behalf--consulted with the Klamath Tribe, and the two parties exchanged memorandums on the appropriate scope of the claims submitted by the United States for the benefit of the Klamath Tribe. Respondent water users’ association, whose interests, because of the scarcity of water in the area, were averse to tribal interests, (1) sued the Bureau in a Federal District Court under FOIA, and (2) sought to compel release of certain documents communicated between the Bureau and the Klamath Tribe with respect to the federal and state proceedings. The district court ruled that the documents were exempt from disclosure under Exemption 5. The United States Court of Appeals for the Ninth Circuit reversed, holding that Exemption 5 was inapplicable on the ground that the tribes had a direct interest in the subject matter of their consultations with the Department. A writ of certiorari was granted.
Were the documents in question shielded from public disclosure under Exemption 5 of FOIA?
The United States Supreme Court held that, regardless of the applicability of the privileges, the documents were not exempt from disclosure under the statute since they were not inter-agency or intra-agency memorandums or letters. The judicially applied exception for independent consultant documents did not apply, since the tribe was pursuing its own interests rather than acting essentially as petitioners' own personnel. Thus, no agency source of the tribal submissions was shown, since the documents were ultimately adversarial in character, and application of any disclosure privilege was precluded.