Sidney M. Wolfe, M.D. v. Department of Health & Human Services , 815 F.2d 1527 ( 1987 )

Opinion for the court filed by Senior Circuit Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge, BORK.

J. SKELLY WRIGHT, Senior Circuit Judge:

The plaintiffs-appellees, members of the Public Citizen Health Research Group, requested access under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq. (1982), to some of the information contained in a “Regulations Log” maintained by the Department of Health and Human Services (HHS). The Department refused plaintiffs’ requests, contending that the information sought was exempt under FOIA Exemption 5, which shields from disclosure those documents that would not be routinely available in civil litigation with the agency. The government claimed that the log information should be considered privileged and thus exempt under the deliberative process privilege. Although the government raised only the common law dimension of the privilege in the District Court, it raises the constitutional aspect of the privilege as well before this court. The District Court rejected the government’s argument, and we now address on appeal the proper scope of the privilege claimed and therefore of Exemption 5 as well.

I. Factual Background

Plaintiffs filed the instant FOIA request in order to locate the cause of what they allege to be unreasonable delay in issuance of Food and Drug Administration (FDA) regulations. This case is part of a larger attack by plaintiffs and other individuals and organizations on the increasing centralization of rulemaking authority within the Executive Branch. Two developments within the last six years have sparked this attack. First, in 1981 the Secretary of HHS withdrew the delegation of power to the FDA to issue regulations that it deemed in the public interest. Instead, such regulations now must first be reviewed and approved by the Secretary. See 21 C.F.R. § 5.11 (1985). Second, the President issued Executive Order 12291 (Feb. 17, 1981), which requires all agencies considering issuance of a rule to submit the rule for review by the Office of Management and Budget (OMB). OMB scrutinizes the rule for consistency with presidential policies and for cost efficiency. Thus, before a rule proposed by FDA may be issued it must be approved first by the Secretary of HHS and then by OMB.

In essence, plaintiffs wish to know how long rules proposed by FDA are spending at each stopping point along the approval route from FDA to HHS to OMB and back to HHS, so that they can identify and contest delays in issuance of FDA regulations. Plaintiffs began by submitting on July 18, 1984 a written request to HHS for access to records indicating which FDA proposals were then pending for review by HHS or OMB. HHS denied this request by letter dated August 23, 1984 on the ground that the information sought is exempt from disclosure under FOIA Exemption 5. Plaintiffs renewed their request by letter dated March 7,1985, to which they received no formal response. Plaintiffs then filed this action in the District Court on April 1, 1985. By letter dated April 16, 1985 plaintiffs submitted to HHS a second request for the same information and in addition sought access to the dates of transmittal of proposed rules from FDA to HHS, from HHS to OMB, and from OMB back to HHS. On April 19, 1985 HHS denied this second request on the same ground as the denial of the first request. On April 25, 1985 plaintiffs appealed by letter their April 16 request. The appeal was formally denied on May 31, 1985. On June 14, 1985 plaintiffs amended their complaint in this action to include their second request.¹

While plaintiffs’ case was pending in District Court, HHS disclosed that it maintains a Regulations Log that lists by title regulatory action proposed by FDA (and other branches of HHS), the date on which the action was received by HHS, and, if applicable, the date on which HHS sent it on to OMB. The log also contains information about the offices and persons within HHS to which the matter has been routed, but plaintiffs have not sought access to this information. Nor do plaintiffs seek access to the specific substance of the proposed rules. They seek only the dates on which the proposals, identified only by their title, were transmitted from one agency to another. This information will usually reveal whether and when FDA proposes rulemak-ing and whether and when such proposals are approved by HHS and OMB.

The District Court ruled that FOIA Exemption 5 did not apply to this case because the log information does not fall under the deliberative process privilege as the government claimed. District Judge Pratt reasoned that none of the policies underlying the privilege would be significantly implicated by disclosure of the requested material and concluded that the mere fact that “a recommendation has been made by one agency to another” is not information “sufficiently ‘deliberative’ to trigger the protections of the privilege.” Memorandum Opinion, 630 F.Supp. 546 (D.D.C.1985) (hereinafter Mem. Op.) at 550, Joint Appendix (JA) 79-80. Accordingly, the District Court granted summary judgment for plaintiffs, denied defendant’s cross-motion for summary judgment, and ordered disclosure of the requested information within 30 days. HHS filed a timely appeal, and on January 17, 1986 a panel of this court granted the agency’s unopposed motion for a stay of the District Court’s order pending appeal. For the reasons cogently set forth by the District Court and elaborated below, we affirm the grant of summary judgment to plaintiffs.

II. The Common Law Deliberative Process Privilege

The government relies heavily on appeal (and relied exclusively in the District Court) on the common law deliberative process privilege. This privilege, which shields predecisional advisory opinions and recommendations from disclosure, is uncontrovertedly meant to promote candor in governmental deliberations. Indeed, the legislative history of Exemption 5 states explicitly that the purpose of the exemption is to encourage “frank discussion of legal and policy issues.” S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965); see H.R.Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966). In light of this clear purpose, the Supreme Court and this circuit have uniformly held that the privilege protects only predecisional opinion, not purely factual information that does not reveal the substance of predecisional opinion.² See EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C.Cir.1980); Ryan v. Dep’t of Justice, 617 F.2d 781 (D.C.Cir.1980).

Although the opinion/fact distinction is a useful vehicle for promotion of candor, it may nonetheless generate controversy over whether particular information is properly deemed “fact” or “opinion.” On the one hand, the government argues that the log in question constitutes “opinion” because the fact that a proposal for regulation has been transmitted from FDA to HHS, or from HHS to OMB, or back to HHS from OMB, usually reveals that the transmitting agency has tentatively approved the proposed regulation. See Brief for Appellant at 25-26. On the other hand, plaintiffs maintain that the titles and dates contained in the log entries are merely information about the status of the proposed rules, detailing when and before whom they are pending. See Brief for Appellees at 8, 12. The applicability of the privilege and thus the exemption turns on which of these competing characterizations is accepted.

Characterization of the information at issue is a “novel” question of law not easily resolved by precedent.³ See Mem.Op. at 547, JA 72. Nor is the question easily resolved by precedent.³ See Mem.Op., 630 F.Supp. at 547, JA 72. Nor is the question easily resolved by logical deduction. Information does not come neatly labelled as “fact” or “opinion.” There are bound to be hard cases like the one before us in which plausible arguments can be made on either side, and the angle from which the information is viewed and the light shed upon it by the viewer will determine whether it is per-adopted by the District Court is not to label the information conclusorily as fact or opinion, but rather to classify it in light of the policies and goals that underlie the deliberative process privilege. See Mem.Op., 630 F.Supp. at 550, JA 78.

The dissenting opinion seems to miss this crucial point, which forms the framework of our analysis. In order to reach its conclusion that the log information is protected by the deliberative process privilege, the dissent assumes that the log information is “recommendation” or “opinion” when that is precisely the point at issue. The dissent thus sidesteps the central issue in this case. The resolution of this issue is not nearly as simple as the dissent pretends, because the log information can plausibly be characterized in at least two competing and contradictory ways. Having wholeheartedly adopted the government’s characterization, the dissent is shocked to find us considering the policies underlying the privilege to see if it protects the log information. But we advert to the policies underlying the deliberative process privilege not to perform some sort of superfluous balancing test to see if the privilege really does protect “deliberative” material, but rather to decide whether the dates and titles sought by the plaintiffs can fairly be characterized as “deliberative” in the first place. Reference to these underlying policies in this case makes clear that the log information, which reveals only whether and when a recommendation has been made and not what the substance of that recommendation is, cannot accurately be characterized as “opinion” or “recommendation” because its disclosure would endanger none of the goals legitimately protected by the privilege.

The general purpose of the privilege, as noted above, is to encourage frank and full predeeisional discussion by government officials free from fear of ridicule or misunderstanding by the public. The government argues that disclosure of the log information to the plaintiffs will impair these goals in four ways.

First, and least persuasively, the government suggests that disclosure of the dates on which decisions are reached will impair “measured and deliberate appraisal of the issues” and lead to “precipitous” decisions because the public will be able to attribute delay to specific decisionmakers. Brief for Appellant at 29. Disclosure of the log information, however, will not permit attribution of delay to individuals, only to agencies. Thus it seems implausible that the many individuals employed by the agencies and involved in the decisionmaking process will feel personally scrutinized for any delay. Even more implausible is the government’s central proposition that attribution of delay will lead to hasty decisionmaking. As plaintiffs wryly note, they have been attributing delay to various agencies for years, and hasty decisionmaking has certainly not been the result. Finally, the ability of the public to attribute unjustified delay to specific agencies is in accord with the general goal of FOIA — promoting government accountability. Unless the government can present some evidence that disclosure will inhibit the decisionmak-ing process — which, after all, is what the privilege is designed to protect — the public has a right to know the source of decisional delay. The government’s fear of “precipitous” decisions is entirely speculative.

Second, the government argues that disclosure of the log information will ultimately inhibit individual decisionmakers from expressing their disagreement with a.proposal because the logs will identify which agency was the stopping point for a proposed regulation. To address this argument, it is important to clarify exactly what information the logs reveal. Plaintiffs have requested only the titles and dates of transmittal of proposed regulations. The titles identify only the very broadest area of regulation under consideration; they may be as general as “Caffeine” or “Bubble Bath- Products.” See Current and Projected Rulemakings, Unified Agenda, 50 Fed.Reg. 17251, 17280 (April 29, 1985), JA 25, 34. Thus the dates of transmittal between agencies tell plaintiffs simply that the transmitting agency has probably tentatively approved some regulatory change — which could entail either increased or decreased regulation — in a very broad field, and the lack of transmission after a certain point probably indicates that the last agency decided not to approve some regulatory change in that field. As this circuit has held, “To test whether disclosure of a document is likely to adversely affect the purposes of the privilege, courts ask themselves whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency[.]” Coastal States, 617 F.2d at 866. The agency’s general position as inferred from its transmittal of a proposed regulatory change is hardly information very “candid or personal” in nature. Moreover, it is highly implausible that individual decisionmakers within an agency will be reluctant to discuss their specific views on the precise regulations before them simply because the agency’s very general disposition will ultimately be revealed. The precise regulation at issue, the arguments made about it, the reasons for the agency’s decision, and the decisionmakers involved are not sought by plaintiffs; the very general information they do seek is unlikely to reduce the candor of deliberations within the agency’s walls.

Moreover, the new procedures adopted by OMB’s Office of Information and Regulatory Affairs (OIRA), which permit public access to all correspondence exchanged between OIRA and the head of an agency during the review process after final action is taken, see letter of August 15, 1986 from the Department of Justice to the Clerk of this court, suggest that OMB does not believe that public knowledge of OMB’s disposition of the proposed rules that come before it will “chill” decisionmakers’ candor in considering those rules.

The government’s third argument is that disclosure of the log information will confuse and mislead the public because the agency that has tentatively approved a regulation could change its mind. The government here misunderstands the concern that underlies application of the privilege. Although the government cites the Coastal States case, Brief for Appellant at 33, it neglects that portion where this circuit made clear that the privilege is meant “to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action.” Coastal States, 617 F.2d at 866 (emphasis added). The information sought by plaintiffs, which would indicate simply agency approval or disapproval of regulatory change in a very broad area, poses little danger of misleading the public by false rationales since no rationale at all will be disclosed. In any case, it appears highly unlikely that the dates and titles contained in the log will mislead in any fashion the informed public seeking access to it, or anyone else.

Finally, the government maintains that the privilege should shield the log information because disclosure will permit and encourage increased and more focused lobbying. Once again, the government misunderstands the purposes of the privilege. The privilege is meant to ensure that agency deliberations are conducted with frankness, without fear that each tentative word or thought will be subject to public scrutiny. But the privilege is not meant to isolate agency decisionmakers from public opinion or to silence public voices. Indeed, FOIA itself, to which the privilege is a narrow exception, is premised on the contrary view — that the government should be accountable to the public for its actions. No case holds that fear of increased lobbying alone is sufficient to bring information within the scope of the privilege and the exemption.⁴

In sum, none of the government’s arguments demonstrates a significant threat to any of the policies and goals that inform the deliberative process privilege. It is reference to these policies that should determine whether information is labelled “fact” or “opinion” and thus whether it is shielded by the privilege. After reviewing the government’s arguments in light of the manifest purposes behind the privilege, we must agree with the District Court that the regulatory log at issue constitutes “fact” because it is insufficiently “deliberative” to claim the protection of the privilege:

III. The Constitutional Executive Privilege

The government relied exclusively on the common law deliberative process privilege in its argument before the District Court. For the first time on appeal it raises the argument that the constitutionally based executive privilege protects communications between HHS and OMB (but not between FDA and HHS). Although the District Court did not address this argument, we are persuaded for reasons similar to those relied upon by Judge Pratt and discussed above in the common law context that the constitutional branch of the privilege offers no more support to the government than the common law branch.

Confidential communications to and by the President are protected by a privilege of constitutional underpinnings. The rationale that supports this privilege is similar to the concerns that underlie the common law deliberative process privilege — to ensure full and frank discussions between the President and his advisors. Although the government argues that the constitutional privilege is broader in scope than the common law privilege, there is no doubt that some threat to the policies that underlie the privilege must still be found before information that is not clearly “deliberative” is shielded from public view. For the reasons stated above in the common law context, no such threat is evident. Moreover, even if such a threat were found to exist, extension of the presidential privilege to the OMB is unprecedented and unwarranted. The President himself and communications with him are not implicated in any way by the OMB review process; to extend the privilege to OMB invites extension to the entire Executive Branch, which would create an unnecessary sequestering of massive quantities of information from the public eye.⁵ We cannot find that the log at issue in this case is protected by the Executive’s constitutional privilege.

IV. Abandoning the Fact/Opinion Distinction to Protect the Deliberative Process

The government makes a somewhat confusing argument that the deliberative process privilege protects not only deliberative materials, but the deliberative process itself. Although no case relied upon by the government supports it, the government seems to be arguing that we should abandon the fact/opinion distinction and instead ask whether disclosure of the information at issue, be it fact or opinion, would “disrupt” the decisionmaking process even if it did not reveal the substance of predecisional recommendations. See Brief for Appellant at 20. We cannot accept this argument. The Supreme Court and this circuit have explicitly endorsed the fact/opinion distinction, making clear that the revelation of predecisional recommendations is the touchstone for the application of the deliberative process privilege. See Mink, 410 U. S. at 89, 93 S.Ct. at 837; Coastal States, 617 F.2d at 867; Ryan, 617 F.2d at 790; Montrose Chem. Corp., 491 F.2d at 66-67; Soucie v. David, 448 F.2d 1067 (D.C.Cir. 1971); see also Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C.1966), aff'd, 384 F.2d 979 (D.C.Cir.), cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967). None of the cases cited by the government overrules or questions the appropriateness of the distinction or the rationale underlying it. Accordingly, we are bound to follow the clear and firmly rooted precedent of the Supreme Court and our own circuit.

Moreover, even were we not so bound, the standard proposed by the government merely duplicates the analysis already appropriate under the current standard. To determine whether information that is not clearly “deliberative” should be deemed fact or opinion, courts should look to the policies underlying the privilege. In so doing they must ask whether disclosure would restrain the candor of governmental deliberations or lead to confusion on the part of the public as to the reasons for governmental action. Thus, under the current standard, we already ask whether the deliberative process would be impaired and invoke the privilege if we find that it would be. The government suggests that the privilege should also apply to impairment other than restraint of candor or public confusion. While there may in fact be other forms of disruption or impairment, they are clearly not encompassed by the privilege as understood by the Congress in creating FOIA Exemption 5 or by the Supreme Court and this circuit in interpreting it. The courts’ interpretation of the privilege makes quite clear what sorts of “impairment” are properly embraced by the protection of the privilege. Hence, we cannot agree with the government’s proposed revision of the standard.

Y. Conclusion

We find that neither the common law deliberative process privilege nor the constitutional Executive privilege encompasses the log information sought by plaintiffs. Nor are we willing to abandon the fact/opinion distinction emphatically endorsed by the Supreme Court in determining the applicability of the privilege. We thus conclude that the District Court’s judgment should be, and it is hereby,

Affirmed.

1 . The government argues in a footnote in its brief that, to the extent that plaintiffs’ case turns on their first request, their claim should be dismissed for failure to exhaust their administrative remedies. See Brief for Appellant at 10 n. 8. We reject this argument. The second request encompassed the subject matter of the first and was fully pursued through the administrative appellate scheme. Any failure to appeal the denial of the first request is thus irrelevant.

2 . Of course, when factual material does reveal the substance of predecisional opinions, it receives the same protection that the opinions themselves would receive if directly revealed. See Montrose Chem. Corp. v. Train, 491 F.2d 63, 68 (D.C.Cir.1974) (compilation of facts by aides to the EPA Administrator revealed what information they "cited, discarded, compared, evaluated, and analyzed,” and thus constituted “an improper probing of the mental processes behind the decision of an agency”).

3 . The dissent bizarrely concludes that the decisions in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975); and Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C.Cir.1980), “require" the conclusion that the log information is protected by the deliberative process privilege. These cases, however, largely concern whether certain documents are "predecisional.” This is not an issue in the instant case, as we grant the uncontroversial contention that the log information is "predecisional.” The central issue before us is whether the log information is "deliberative,” on which the three cases cited by the dissent offer no direction. All of those cases involve memoranda chock-full of "analysis!,] * * * evaluation * * * [and] recommendation.” Grumman, 421 U.S. at 174, 95 S.Ct. at 1495. They offer no guidance in determining whether the dates and titles involved here can likewise be considered "deliberative.” This is clearly a matter of first impression, as the District Court recognized.

4 . The dissent attempts to refute this point and thus rescue the government's "lobbying” argument by citing Chemical Manufacturers Ass’n v. Consumer Prod. Safety Comm’n, 600 F.Supp. 114 (D.D.C.1984), and Tax Reform Research Group v. IRS, 419 F.Supp. 415 (D.D.C.1976). This attempt is unavailing. Both of these cases clearly premise their invocation of the deliberative process privilege on the need to promote candor in deliberations — a separate point pressed by the government. See Chemical Manufacturers Ass’n, 600 F.Supp. at 118 (disclosure of predeci-sional scientific exchanges might have a "chilling effect” that would “discourage intellectual risk taking”); Tax Reform Research Group, 419 F.Supp. at 423 (disclosure of names of individuals involved in IRS decisionmaking might have "chilling effect” on the “openness” of their comments and advice). Neither case suggested that the mere desire to avert lobbying alone, aside from its effect on candor, was enough to bring the deliberative process privilege into play.

5 . The dissent suggests that we could avoid the slippery slope of immunizing all Executive Branch communications from disclosure under FOIA by examining in each case the extent to which the agency is acting as delegate of the President as opposed to a delegate of Congress. Given that most executive agencies, like the OMB, act under both congressional statutory mandate and presidential authority, the dissent’s suggestion is unacceptably manipulable and incapable of drawing a principled line short of the massive sequestering of information we fear. Moreover, such an open-ended proposal seems odd indeed in the same opinion that worries that our analysis of the policies underlying the privilege will prove "impossible for courts to administer” and lead to a "waste of judicial time and energy.” Dissent at 1537.