Legal Opinion: GMP-0144

Index: 7.350

Subject: FOIA Appeal: Decisional Document

January 26, 1993

Susan M. Hull, Esq.

Jenkens & Gilchrist

1445 Ross Avenue

Suite 3200

Dallas, Texas 75202-2799

Dear Ms. Hull:

This is in response to your Freedom of Information Act

(FOIA) appeal dated November 17, 1992. You appeal the denial

dated October 22, 1992 to Craig Flournoy, Dallas Morning News,

from Rachel V. Calvillo, Regional Information Officer, Fort Worth

Regional Office. Ms. Calvillo withheld two intra-office

memoranda and a copy of an electronic mail message under

Exemption 5 of the FOIA. You appeal the denial of the two intra-

office memoranda.

I have determined to affirm, in part, and reverse, in part,

the initial denial.

Exemption 5 of the FOIA exempts from mandatory disclosure

\"inter-agency or intra-agency memorandums or letters which would

not be available by law to a party . . . in litigation with the

agency.\" 5 U.S.C. 552(b)(5). Exemption 5 incorporates a number

of privileges known to civil discovery including the deliberative

process privilege, the general purpose of which is to \"prevent

injury to the quality of agency decisions.\" NLRB v. Sears,

Roebuck & Co., 421 U.S. 132, 151 (1975).

A document can qualify for exemption from disclosure under

the deliberative process privilege of Exemption 5 when it is

predecisional, i.e., \"antecedent to the adoption of an agency

policy,\" Jordan v. Department of Justice, 591 F.2d 753, 774

(D.C. Cir. 1978) (en banc), and deliberative, i.e., \"a direct

part of the deliberative process in that it makes recommendations

or expresses opinions on legal or policy matters.\" Vaughn v.

Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975).

Ms. Calvillo withheld two records under Exemption 5 as

intra-agency, predecisional memoranda:

1\. Memorandum from Sam Moseley, Regional Administrator,

to Joseph G. Schiff, Assistant Secretary for Public

and Indian Housing, dated July 23, 1991, Subject:

Documentation and Information to Support Requested

Waivers for the Implementation of the Lakewest

Revitalization Plan in West Dallas (Proj. TX009011)

Dallas Housing Authority, Dallas, Texas;

2\. Memorandum from Mr. Schiff to Mr. Moseley, dated

September 6, 1991, Subject: Lakewest Revitalization

Plan (Dallas).

I have determined to affirm the initial denial of the

July 23, 1991 memorandum under the deliberative process privilege

of Exemption 5. The memorandum provides, for Headquarters\'

consideration, the analysis and recommendation of the Regional

Administrator concerning waivers for the implementation of the

Lakewest Revitalization Plan by the Dallas Housing Authority,

including waiver of the Department\'s Performance Funding System

regulation, 24 C.F.R. Part 990, and the Department\'s Utility

Allowance regulation, 24 C.F.R. Part 965. As such, the

memorandum is a predecisional document involved in the

Department\'s deliberative process for approval of the Lakewest

Revitalization Plan and it is exempt from disclosure under

Exemption 5. I have also determined, pursuant to 24 C.F.R.

Section 15.21, that the protection of the deliberative process

militates against disclosure of the July 23, 1991 memorandum.

I am reversing the initial denial and releasing a copy of

the memorandum dated September 6, 1991. The memorandum provides

Departmental guidance and decisions on the Lakewest

Revitalization Plan. The memorandum, therefore, constitutes a

decisional document which cannot be withheld under Exemption 5.

See, Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708 (D.C. Cir.

1971\) disclosing information involving \"orders and

interpretations which \[the agency\] actually applies to cases

before it.\" A copy of the September 6, 1991 memorandum is

enclosed.

Please be advised that you are entitled to judicial review

of this determination under 5 U.S.C. Section 552(a)(4).

Judicial review of my action on this appeal is available to you

in the United States District Court for the judicial district in

which you reside or have your principal place of business, or in

the District of Columbia, or in the judicial district where the

records you seek are located.

Sincerely,

George L. Weidenfeller

Deputy General Counsel (Operations)

Enclosure

cc: Yvette Magruder

William J. Daley, 6G