# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2009 Decided June 19, 2009 Reissued March 11, 2010

No. 08-5004

P UBLIC C ITIZEN

, I NC

., A PPELLANT

v.

O FFICE OF M ANAGEMENT AND B UDGET

, A PPELLEE

Appeal from the United States District Court

for the District of Columbia (No. 07cv00409)

Adina H. Rosenbaum argued the cause for appellant.

With her on the briefs was Brian Wolfman

.

Alexander D. Shoaibi , Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor , U.S. Attorney, and R. Craig Lawrence , Assistant U.S. Attorney.

Before: R OGERS and T ATEL

, Circuit Judges , and

W ILLIAMS

, Senior Circuit Judge

.

Opinion for the Court filed by Circuit Judge T ATEL

.2

Opinion concurring in part and dissenting in part filed by Senior Circuit Judge W ILLIAMS

.

T ATEL

, Circuit Judge : Seeking to learn which federal agencies submit materials to C ongress without prior clearance by the Office of Management and Budget, Public Citizen, a non-profit public interest or ganization, filed a Freedom of Information Act request for documents related to OMB’s legislative and budgetary cleara nce policies. OMB released

redacted versions of fourteen documents, claiming that the redacted portions are protected from disclosure under two of FOIA’s nine statutory exemptions—Exemption 2 for predominantly internal documents and Exemption 5 for predecisional and deliberative doc uments. The district court held that OMB was entitled to withhold the redacted portions of the documents under Exemption 2 and granted summary judgment to OMB. Reviewing de novo, we disagree. Having examined the unredacted documents, we conclude that they do not relate predominantly to OMB’s internal practices and are thus unprotected by Exemption 2. And because Exemption 5 requires that ma terials be both predecisional and deliberative, it likewise pr ovides no protection for the majority of the documents’ conten t. We therefore reverse in part and remand for the district court to order the release of the documents with any redaction necessary to protect portions that qualify as both pr edecisional and deliberative.

I.

The Office of Management and Budget (OMB), located in the Executive Office of the President and subject to FOIA,

see 5 U.S.C. § 552(f)(1); Meyer v. Bush , 981 F.2d 1288, 1294 (D.C. Cir. 1993), helps the Pr esident prepare the federal budget and ensures that legislat ion, testimony, reports, and policies prepared by other federal agencies are consistent with Administration policy. Two OM B circulars require federal3

agencies to clear materials w ith OMB before submitting them to Congress: Circular N o. A-11 covers budget-related materials, and Circular No. A- 19 covers proposed legislation, reports to Congress, and congressional testimony. Pursuant to Circular A-19, OMB reviews the submissions, solicits comment from affected agencies , and gives feedback to the proposing agency. Circular A- 19 provides that agencies “shall incorporate” OMB’s advice in transmitting their legislative proposals to Congress and “shall not submit to Congress any proposal that OMB has advised is in conflict with the program of the President or has asked the agency to

reconsider as a result of the coordination process.” O FFICE OF
M GMT

. & B UDGET

, E XECUTIVE O FFICE OF THE P RESIDENT

, OMB C IRCULAR N O

. A-19, L EGISLATIVE C OORDINATION AND
C LEARANCE ¶ 8( C ) (1979) (“C IRCULAR N O

. A-19”). Circular A-19 applies to all executive agencies except those “specifically required by law to transmit their legislative proposals, reports, or testimony to the Congress without prior

clearance.” Id.

Unable to find a publicly avai lable list of agencies that

transmit their materials to Congress without prior OMB clearance—so-called “bypass agen cies”—Public Citizen filed a FOIA request with OMB. The request asked for:

(1) All records listing agencies that may directly submit legislative proposals, reports, or testimony to Congress without receiving OMB clearance; (2) [a]ll records listing agencies th at may directly submit budget-related materials to Congress without receiving OMB clearance; and (3) [a]ll records explaining that agencies or an agency may directly submit legislative or budge t-related materials to Congress without receivi ng OMB clearance or4

providing statutory authority for agencies or anagency to directly submit legislative or budgetrelated materials to Congress without receiving

OMB clearance.”

Adina H. Rosenbaum Decl. Ex. A at 1.

In response, OMB identified two documents but refused to release them, claiming they were exempt from disclosure under FOIA. Public Citizen appealed, challenging the

decision to withhold the two doc uments and the adequacy of the search given how few responsive documents it yielded. When OMB denied the appeal, Public Citizen brought this action in the district court. After Public Citizen filed its complaint, OMB, “out of an abundance of caution,” Appellee’s Br. 5, conducted a second document search, identifying tw enty additional potentially responsive documents for a total of twenty-two, including the fourteen

documents at issue in this appeal. Although OMB released

redacted versions of the fourt een documents, it continued to withhold significant portions of them.

As described in OMB’s amended Vaughn index, see Vaughn v. Rosen , 484 F.2d 820, 826–28 (D.C. Cir. 1973),

thirteen of the fourteen documents—document 1 and documents 3 to 14—represent th e current version and various

outdated versions of a memo to OMB staff from OMB’s Assistant Director for Legisla tive Reference. James Jukes Am. Decl. Attach. A at 1. The memo provides “a background discussion of legal and statut ory issues related to bypass authorities, a list of the bypass agencies and a summary description of the agencies’ budge tary and legislative ‘bypass’

authorities and a discussi on of bypass authority and Inspector[s] General[].” Id. The remaining document,5

document 2, entitled “Agencies Exempt from the Legislative Clearance Process,” is a two- page excerpt from a document called “OMB Roles and Responsibilities.” Id. OMB describes all fourteen documents as summarizing “the currently-held internal-OMB perspectives and views regarding which Federal agencies have a basis—in statute or in prior agency and OMB practice—for not submitting to OMB, for interagency review, the drafts of their submissions to Congress.” Jukes Am. Decl. ¶ 26. According to OMB, then, the documents deal with two kinds of bypass: bypass based “in statute” and bypass based “in prior agency and OMB practice.” Id.

The portions of the documents OMB released describe agencies with statutorily-based bypass authority. The released portions include st raightforward lists of such agencies, as well as more detailed summaries of the statutory basis for their bypass authority. To take just one example, the Chemical Safety and Hazard Investigation Board appears as one of eleven agency names on a list of “Agencies with Statutorily-Based Budgetary and Legislative ‘Bypass’

Provisions.” Adina H. Rosenbaum Supp. Decl. Ex. E at 1. It also appears in a section entitled “Summary Description of Agencies’ Statutorily-Based Budgetary and Legislative ‘Bypass’ Provisions” and is described as follows:

2. Chemical Safety and Hazard Investigation Board P.L. 101-549, Sec. 301 (amending Sec. 112(F)(6)(R) of the Clean Air Act; 104 Stat. 2569; 42 USCA Sec. 7412(r)(6)(R)) provides that any budget estimate, request, supplemental reque st, or information, any legislative recommendation, or prepared testimony submitted to the President or a Federal Agency shall be concurrently transmitted to Congress. No Federal6

official or agency can require prior review of the Board’s budgetary or legi slative communications to the Congress.

Id. at 3

.

OMB moved for summary judgment as to the undisclosed portions of the documents, claiming that the information they contain is exempt from disclosure under Exemption 2 (predominantly internal documents) and Exemption 5 (predecisional and deliberative documents).

Public Citizen also moved fo r summary judgment, claiming that neither exemption applies. After reviewing the

documents in camera , the district court granted summary judgment to OMB, holding that the documents were exempt from disclosure under Exemption 2. Pub. Citizen, Inc. v. Office of Mgmt. & Budget

, 520 F. Supp. 2d 149, 154–55 (D.D.C. 2007). It thus had no r eason to address whether they also qualified under Exemption 5. Id. at 156.

Public Citizen appeals, argu ing that neither exemption

authorizes OMB to withhold the documents. Our review is de

novo, Sussman v. U.S. Marshals Serv. , 494 F.3d 1106, 1111– 12 (D.C. Cir. 2007), and like the district court, we have

reviewed the documents in camera . Mindful of OMB’s right

to seek further review of our decision, we have redacted portions of this opinion to pr otect the confidentiality of information not yet disclosed, as has our dissenting colleague.

II.

Enacted “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny,” the

Freedom of Information Act refl ects “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language,” Dep’t of Air Force v.7

Rose , 425 U.S. 352, 360–61 (1976) (internal quotation marks omitted). The Supreme Court has emphasized that “disclosure, not secrecy, is the dominant objective of the

Act.” Id. at 361. FOIA allows agencies to withhold only those documents that fall under one of nine specific exemptions, 5 U.S.C. § 552(b), which are construed narrowly in keeping with FOIA’s presum ption in favor of disclosure,

Rose , 425 U.S. at 361. The agency bears the burden of showing that a claimed exemption applies. Loving v. Dep’t of Def. , 550 F.3d 32, 37 (D.C. Cir. 2008). We address each of OMB’s claimed exemptions in turn.

Exemption 2

Exemption 2 allows agencies to withhold documents that are “related solely to the inte rnal personnel rule s and practices of an agency.” § 552(b)(2). De spite the statute’s reference to documents related “solely” to in ternal rules and practices, we have interpreted Exemption 2 to cover documents that are “predominantly internal” and that meet one of two additional requirements. Crooker v. Bureau of Alcohol, Tobacco &

Firearms , 670 F.2d 1051, 1074 (D.C. Cir. 1981) (en banc). The first, known as the “low 2” exemption and not at issue here, applies to predominantly internal materials that relate to

“trivial administrative matters of no genuine public interest.”

Schiller v. NLRB , 964 F.2d 1205, 1207 (D.C. Cir. 1992) (internal quotation marks omitted). The second, known as the “high 2” exemption, id. , and claimed by OMB in this case, applies to predominantly internal materials if their disclosure “significantly risks circumvention of agency regulations or statutes,” Stolt-Nielsen Transp. Group Ltd. v. United States

, 534 F.3d 728, 732 (D.C. Cir. 2008) (internal quotation marks omitted).

We have confronted the “hig h 2” exemption in two key

cases. In Jordan v. United States Department of Justice , 5918

F.2d 753 (D.C. Cir. 1978), we ordered the release of prosecutorial guidelines used by United States Attorneys, finding that the guidelines fail to qualify as predominantly internal. We explained that the guidelines are not “personnel” rules and thus fall outside the statutory exemption for documents “related solely to the internal personnel rules and practices of an agency.” Id . at 763. We also emphasized that the guidelines have a “definite impact on the public.” Id. In Crooker v. Bureau of Alcohol, Tobacco & Firearms , which we heard en banc, we retreated from Jordan ’s reliance on Exemption 2’s use of the term “personnel,” but nonetheless

affirmed Jordan ’s holding that the guidelines were not predominantly internal. 670 F.2d 1051, 1073–75 (D.C. Cir. 1981). We reasoned: “The guidelines on prosecutorial discretion are instructions to agency personnel (e.g., prosecutors) on how to regulat e members of the public. Knowledge of those regulations may be as significant to members of the public as is know ledge of statutory sentencing provisions.” Id. at 1075. As to the document at issue in

Crooker itself—a Bureau of Alc ohol, Tobacco and Firearms manual describing law enforcem ent surveillance techniques— we concluded that it qualified as predominantly internal because it “is not concerned with regulating the behavior of the public, but consists solely of instructions to agency personnel” and does not “attempt to modify or regulate public behavior only to observe it for illegal activity.” Id.

Here the district court held that the OMB documents are predominantly internal because they “offer guidance to OMB officials regarding other agencies’ ability to bypass presidential review of thos e agencies’ budgetary and/or legislative recommendations,” because the information they contain “is plainly intended for internal use only,” and

because there is “no evidence that the documents have ever been circulated to (or relied upon by) individuals outside of9

the Agency.” Pub. Citizen , 520 F. Supp. 2d at 155. Echoing these reasons, OMB now argues that the documents are predominantly internal because th ey have never been released outside OMB, are used by OMB personnel in internal policy discussions, and contain “‘a de scription of the views and perspectives of OMB official s’ interpretations of the views of certain agencies re garding legislative clearance requirements,’” Appellee’s Br. 12 (quoting Jukes Am. Decl. Attach. A at 1). OMB also insists that the documents are predominantly internal because they concern other government agencies, not the pub lic at large, and because they merely serve as briefing materials for OMB personnel and thus seek to regulate no one.

We can easily dispense with several of these arguments. To begin with, the mere fact that the documents were

intended for internal OMB use a nd have never been circulated outside the agency cannot alone render them “predominantly

internal.” See Morley v. CIA , 508 F.3d 1108, 1125 (D.C. Cir. 2007) (“[Exemption 2] does not shield information on the sole basis that it is designed for in ternal agency use.” (internal quotation marks omitted)). Otherwise, agencies could effectively avoid disclosure of any manner of information simply by stamping it “for internal use only.” Indeed, OMB itself seems to acknowledge as much, pointing out that the

district court relied on other factors beyond OMB’s treatment of the documents as internal. Appellee’s Br. 22.

Nor is the documents’ use in internal discussions conclusive. Agencies regularly refer to policies and regulations as part of intern al discussions without rendering such policies (particularly those with significant external impact) predominantly internal. For example, one could easily imagine conversations within the U.S. Attorney’s office in which agency personnel discuss the prosecutorial10

guidelines we found not pre dominantly internal in Jordan

. Such internal discussions would neither diminish the extent to which the guidelines “regulate members of the public” nor reduce the significance of “[k]now ledge of those regulations . . . to members of the public,” Crooker , 670 F.2d at 1075.

OMB’s claim that the documents qualify for Exemption 2 because they concern other govern ment agencies rather than the public at large likewise fails. Exemption 2 covers documents that are “related solely to the internal personnel rules and practices of an agency.” § 552(b)(2) (emphasis added); see also Vaughn , 523 F.2d at 1151 (Leventhal, J., concurring). For Exemption 2 to apply, then, the documents would have to relate predominantly to the internal practices of OMB itself, not of the gove rnment as a whole. In Vaughn v.

Rosen , we concluded that Civil Service Commission materials dealing with other government agencies’ personnel practices were not covered by Exemption 2. 523 F.2d at 1143. As Judge Leventhal explained in his concurring opinion:

[T]he Federal Personnel Manual, issued by the Commission for government-wide application, could certainly not be withheld from the public in reliance on exemption 2; its subject is federal personnel policy, not internal pe rsonnel policy of an agency. . . . A construction of (b)(2) exempting the

Civil Service Commission re ports at issue in this case would . . . totally remove the sphere of Civil Service Commission operations from the public eye.

Id. at 1151 (Leventhal, J., concurring) (footnotes omitted). So

too here. If OMB documents concerning other government agencies were categorically exempt, OMB, which is subject to FOIA and whose primary func tion involves oversight and11

coordination of other government agencies, would be largely exempt from FOIA.

This leaves OMB’s argument that like the surveillance

manual in Crooker , the documents at issue here “‘make no attempt to modify or regulat e public behavior[,] only to observe it.’” Appe llee’s Br. 17 (quoting Crooker , 670 F.2d at 1075) (alteration in original). Evaluating this argument requires a more detailed unde rstanding of the documents’ content, purpose, and use. P ublic Citizen, which of course has never seen the documents, suspects that they establish which agencies may bypass OMB despite the lack of clear statutory authority to do so and in this way regulate other agencies. OMB disputes this ch aracterization, stating that the documents “do not govern the actions of either OMB personnel or other federal agencies,” Appellee’s Br. 13, and emphasizing that OMB cannot override Circular A-19’s determination that only agencies with statutory authority are allowed to bypass the clearance process, Oral Arg. at 17:00– 17:20. But as Public Citizen points out, the titles of the documents suggest just the oppos ite. For example, document 2, entitled “Agencies Exempt fr om the Legislative Clearance Process,” lists those agenci es having statutory bypass authority but also includes a se parate block of text, redacted by OMB, suggesting that the lis t of agencies considered “exempt” from the clearance process includes something more than just those with stat utory authority. Indeed, our in

camera review demonstrates that this document in fact covers statutorily-based bypass agencies as well as customary bypass agencies, both under the overall heading of agencies “exempt” from the clearance process. Similarly, a section of document 1 broadly entitled “Bypass Agencies” includes both statutory and customary bypass agencies, implying that OMB considers both to be “Bypass Agencies.” Moreover, document 1 expressly states that “[f]orty-four Federal12

agencies currently have some form of legislative and/orbudgetary ‘bypass.’ [These include] agencies with . . . nonstatutory (i.e., ‘informal’) legi slative ‘bypasses.’” Mem. from Jim Jukes to OMB Policy Officers and DADs 1 (Feb. 20, 2001) (“2001 Jukes Mem.”). On its face, then, document 1 appears to state OMB’s polic y regarding which agencies “currently have” an informal bypass. And OMB itself describes the documents as containing its “perspectives and views regarding which Federal agencies have a basis —in statute or in prior agency and OMB practice ”—for bypassing the clearance process. Jukes Am. Decl. ¶ 26 (emphasis added). OMB may well be correc t that it lacks authority to grant a bypass, but by treating some agencies as if they “currently have” an informal bypass, it would seem to be implementing a policy of granting de facto bypasses.

But even if, as OMB insists, it never uses the documents to determine whether to enforce the clearance requirements for a particular agency, the documents do identify those agencies OMB treats differently in its clearance process. Indeed, much like the prosecuto rial guidelines found subject

to disclosure in Jordan , the documents determine OMB’s

interaction with outsiders—an in teraction having real-world effects on the behavior of both bypass and non-bypass agencies. For example, as part of the Circular A-19 clearance process, OMB refers proposed legislation to affected agencies for comment. When referring such materials to a bypass agency, however, OMB, acting pursuant to its “longstanding practice,” follows a different procedure: “In general, an OMB

referral is not made to a ‘bypass’ agency unless the agency agrees to refrain from forw arding to Congress OMB-referred material or its response to an OMB referral.” 2001 Jukes

Mem. 1. The documents thus lis t those agencies required by OMB to act differently than mo st federal agencies, either by agreeing not to forward OMB materials to Congress or by13

commenting only informally or not at all on submissions from other agencies. In addition to depriving listed bypass agencies of a full opportunity to submit formal comments, this policy affects the feedback th at non-bypass agencies receive and must incorporate into thei r congressional submissions. The list of bypass agencies thus stands in marked contrast to the publicly available policy re flected in Circulars A-11 and A-19. As we have repeatedly explained, FOIA provides no protection for such “secret la w” developed and implemented by an agency. See, e.g.

, Nat’l Treasury Employees Union v.

U.S. Customs Serv. , 802 F.2d 525, 531 (D.C. Cir. 1986).

According to the dissent, the documents deal only with peripheral activity as opposed to agencies’ primary conduct. Specifically, the dissent views the referral process as mere

“bureaucratic information excha nge,” Dissenting Op. at 9, but Circular A-19 makes plain that th is process is central to the

clearance function. One of the main purposes of the clearance process is to “assure appropriate consideration of the views of all affected agencies.” C IRCULAR N O

. A-19 ¶ 3. Upon receiving a submission from a non-bypass agency, OMB “undertake[s] the necessary coor dination with other interested agencies of an agency’s pr oposed legislation or report,” including requesting “other ag ency views within specified time limits.” Id. ¶ 8(a)(1). Referral of an agency submission to other agencies for comment t hus represents a key part of the legislative clearance process. As such, the referral policy does more than merely “influence” the behavior of other agencies. It limits or even eliminates the role bypass agencies play in clearing proposals submitted by non-bypass agencies, even when such proposals a ffect the bypass agencies’ own functions. This policy in turn determines the scope of advice OMB provides to non-bypass agencies, advice that those agencies must incorporate into their congressional

submissions.14

The dissent also rejects the view that the documents in fact determine which agencies may bypass the clearance process, describing their “real pu rpose” as limited to the interagency referral process. Disse nting Op. at 3. As noted above, however, on their face the docum ents strongly suggest that they do in fact represent the list of agencies allowed to bypass the process. To be sure, Assist ant Director Jukes asserted that the documents do not represent OMB’s “official policy” on which agencies may bypass, J ukes Am. Decl. ¶ 28, but an agency may not avoid FOIA by deeming its de facto policy “unofficial.” Moreover, J ukes himself describes the documents as summarizing OM B’s views “regarding which Federal agencies have a basis—in statute or in prior agency and OMB practice —for not submitting [materials for OMB clearance].” Id. ¶ 26 (emphasis added). Indeed, the very existence of a policy that treats bypass agencies differently with respect to referral of submissions for interagency

comment indicates that the documents in fact contain OMB’s policy of acquiescing in the list ed agencies’ asserted bypass authority. If the listed agen cies had no bypass authority,

OMB would have no reason to avoid sharing other agency proposals with them.

The dissent says that “we have no basis for inferring” that OMB has authority to subject in formal bypass agencies to the clearance process. Dissenting Op. at 5. The documents themselves indicate otherwise. For example, document 1

notes that in some cases OMB “has made no effort in recent memory to subject the [agenc y] to the requirements of Circular A-19,” 2001 Jukes Mem. Attach. at 19. This strongly suggests that there are steps OMB can take to subject agencies to the clearance proce ss. Moreover, at oral argument OMB counsel repeatedly insisted that OMB can require agencies to submit proposed legislation for clearance. For15

example, asked whether OMB “even with respect to these agencies not statutorily exempt will for particular pieces of legislation exercise its revi ew function,” counsel responded, “[i]f it chooses that it should at a particular time, it will.” Oral Arg. at 35:35–36:00. Counsel later reiterated that as to proposed legislation, OMB “always [has] the power as granted by the Executive Order, by the Circular, by the memo of February 15, 2001, to say ‘we want to look at this,’ and [it] can always do that.” Id. at 37:24–37:33.

Returning, then, to our an alysis, we note that our conclusion that the documents are not predominantly internal applies to the documents in their entirety. Neither the unelaborated list of agency names nor the summaries describing the basis of each agency’s informal bypass authority relate predominantly to OMB’s internal practices. Where, as here, documents are used to affect the behavior of other agencies, knowing the salien t characteristics of agencies that receive differential treatment is as significant to those outside OMB as knowing the agencies’ identities. For example, portions of the summar ies explain that a particular agency does not in fact submit materials for clearance or that OMB has not attempted to subject a particular agency to the clearance process. Such statements implicate the same concerns as the list of agency names; by explaining OMB’s policy of treating certain agen cies differently, they have significant external effects on th e behavior of other agencies and are thus not related predominantly to OMB’s internal practices.

As applied to the summary descriptions, OMB’s argument that the documents are predominantly internal because they embody OMB’s “i nterpretations of the views of certain agencies re garding legislative clearance requirements,” Appellee’s Br. 12, also fails. To begin with,16

the summaries hardly seem interpretive: they consist primarily of quotations from ag encies’ governing statutes and statements that a given agency in terprets a particular statute as authorizing bypass, that it lacks a statutory bypass, or that it declines to submit materials for clearance. Indeed, only one sentence in any of the summarie s even hints at an OMB view or perspective: one agency’s de facto bypass, it says, “could be” based on a particular section of the agency’s governing

statute. 2001 Jukes Mem. Att ach. at 19. But even if such statements represent OMB’s interpretations of other agencies’ views, they nonetheless descri be possible bases for bypass authority in which OMB acquiesces. As such, they are themselves significant in explaining the different requirements imposed on certain agencies.

Finally, the documents at issue here lie at the core of what FOIA seeks to expose to public scrutiny. They explain how a powerful agency performing a central role in the functioning of the federal government carries out its responsibilities and interacts w ith other government agencies. As we have explained, “the str ong policy of the FOIA [is] that the public is entitled to know what its government is doing and why.” Coastal States Gas Corp. v. Dep’t of Energy , 617 F.2d 854, 868 (D.C. Cir. 1980). Where, as here, agency documents have significant external effects on other government agencies, they are not “predominantly internal” within the meaning of Exemption 2.

Because the documents Public Citizen seeks are not related predominantly to OMB’s internal practices, we have no need to decide whether they meet the high 2 exemption’s second element—that their release would significantly risk

circumvention of the law. See Crooker , 670 F.2d at 1075 (reiterating that the prosecutorial guidelines in Jordan would be subject to disclosure b ecause “even assuming that the17

guidelines . . . may aid some i ndividuals in evading the law, [they] are not ‘predominantly internal’”). We thus turn to

OMB’s alternative claim that the documents are covered by Exemption 5.

Exemption 5

Exemption 5 allows agencies to withhold documents that would be protected from disclo sure in litigation under one of the recognized evidentiary or discovery privileges, such as the attorney-client privilege. Coastal States , 617 F.2d at 862. Here the privilege at stake is the deliberative process privilege, which

serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and r ecommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and 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.

Id. at 866. Thus, as embodied in Exemption 5, the privilege protects documents that ar e both “predecisional” and

“deliberative.” Id. “We deem a document predecisional if it was generated before the adop tion of an agency policy and deliberative if it reflects the give-and-take of the consultative process.” Judicial Watch, Inc. v. FDA , 449 F.3d 141, 151 (D.C. Cir. 2006) (internal quotation marks omitted). OMB

claims that the documents at is sue here are all predecisional

and deliberative and thus covered by Exemption 5.18

We begin with OMB’s response to Public Citizen’s argument that even if the documents were at one time predecisional and deliberative, OMB’s informal adoption and application of the documents as its “working law” render them final and thus subject to disclosure. See Coastal States

,617 F.2d at 866 (explaining that “even if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue”). OMB claims that because of its “unique role and position in the Executive Branch” as advisor to the President, Appellee’s Br. 45, its documents are “‘by their nature’” predecisional and deliberat ive and cannot constitute “‘working law,’” id. at 44 (quoting United States v. Philip

Morris USA Inc. , 218 F.R.D. 312, 321 (D.D.C. 2003)). OMB’s advisory role may well mean that some—indeed, even many—documents it produces are predecisional in nature, but the blanket applic ation of Exemption 5 it seeks goes too far: carried to its logical conclusion, the argument would exempt virtually all OMB documents from disclosure.

We have no doubt that OMB fr equently produces documents that contain recommendations, but such documents are hardly contagious, spreading their predecisional and deliberative nature to all other documents in their vicinity. Documents qualify as predecisional and delibera tive only if they “reflect[] advisory opinions, recomme ndations, and deliberations comprising part of a process by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency’s adoption of a policy.” Taxation With Representation Fund v. IRS , 646 F.2d 666, 677 (D.C. Cir. 1981). To the extent the do cuments at issue in this case neither make recommendations for policy change nor reflect

internal deliberations on the a dvisability of any particular course of action, they are no t predecisional an d deliberative despite having been produced by an agency that generally has an advisory role. And although it might well be difficult to19

determine at what point OMB’ s recommendations about the suitability of a particular pie ce of proposed legislation have been sufficiently adopted to qualify as “working law,” we face no such difficulty here. Documents reflecting OMB’s formal or informal policy on how it carries out its responsibilities fit comfortably within the working law

framework.

OMB argues that the documents Public Citizen seeks are in fact predecisional because OMB “consider[s]” the documents “during the inheren tly deliberative process of legislative clearance.” Appellee’ s Br. 41. But we agree with Public Citizen that an agency’s application of a policy to guide further decision-making does not render the policy itself predecisional. For example, in Tax Analysts v. IRS , we held that IRS documents containing legal advice to field offices were not predecisional because even though they “may precede the field office’s decisi on in a particular taxpayer’s case, they do not precede the decision regarding the agency’s legal position.” 117 F.3d 607, 617 (D.C. Cir. 1997). Similarly, in Jordan , where we held that the prosecutorial guidelines were neither predec isional nor deliberative, we reasoned that even though the guidelines “may not be absolutely binding on each Assistant,” they “do express the settled and established policy of the U.S. Attorney’s Office.” 591 F.2d at 774. Here the documents list the agencies to which OMB refers materials for formal comment only after obtaining assurances of c onfidentiality. Absent such assurances, OMB may well deci de on a case-by-case basis whether to request a bypass agency’s informal comments on a particular piece of proposed le gislation. Such subsequent decisions, however, do not undermine the finality of the existing policy, which singles out the agency for differential treatment in the first place.20

Urging a second basis for clas sifying the documents as predecisional, OMB argues that they “serve as a starting point

for discussions within OMB c oncerning possible changes to OMB’s practices.” Appellee’s Br. 35. This argument gets OMB only so far. As Public Citizen correctly notes, Appellant’s Reply Br. 18, whenever an agency seeks to change a policy, it logically starts by discussing the existing policy, and such discussions hardly render documents explaining the existing policy predecisional. Otherwise it would be hard to imagine any government policy document that would be sufficiently final to qualify as non-predecisional and thus subject to disclosure under FOIA. In any event, Exemption 5 protects only documents that are both predecisional and deliberative. As we explained in Jordan

, “it is not enough that a communication precede the adoption of an agency policy.” 591 F.2d at 774. To qualify under Exemption 5, a document must also “‘be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.’” Id. (quoting Vaughn , 523 F.2d at 1143–44). A document that does nothing more than explain an existing policy cannot be

considered deliberative. E.g.

, In re Sealed Case , 121 F.3d 729, 737 (D.C. Cir. 1997). Nor may an agency avail itself of Exemption 5 to shield existing policy from disclosure simply by describing the policy in a doc ument that as a whole is predecisional, such as a memo written in contemplation of a change in that very policy. Only those portions of a predecisional document that refl ect the give and take of the deliberative process may be withheld. Access Reports v. Dep’t of Justice , 926 F.2d 1192, 1195 (D.C. Cir. 1991) (explaining the difference between the predecisional requirement and the deliberativ e requirement and noting that agencies may withhold only those portions of a predecisional document that are also deliberative). Here the documents list agencies that “currently have” formal or informal bypass21

authority. Significantly for our purposes, the documents nowhere consider whether OMB should cease acquiescing in a particular agency’s practice of bypassing OMB. Indeed, document 2 merely lists agency names—it offers no commentary whatsoever. Simila rly, portions of documents 1 and 3 to 14 list the agencies and give the reasons for their inclusion on the list, and as we’ve explained, the reasons behind existing policy—such as OMB’s policy of treating certain agencies differently—are not deliberative. To the extent documents 1 and 3 to 14 go beyond describing and explaining the existing policy an d current state of affairs, OMB may withhold only those por tions that provide candid or evaluative commentary.

Moreover, agencies must disclose those portions of predecisional and deliberative documents that contain factual information that does not “inevitably reveal the government’s

deliberations.” In re Sealed Case , 121 F.3d at 737. The list of bypass agencies consists of just such factual information, i.e., the names of agencies that, in fact, generally decline to

submit materials for OMB clear ance. While OMB may be right that such a list does not establish the “fact” that an agency actually possesses undisp uted legal authority to bypass OMB, it does represent a “fact” about the agency’s behavior—specifically, that the agency does or does not

submit materials to OMB. As OMB counsel explained, some agencies that had initially bypassed OMB without statutory authority later asked OMB to review their submissions, and as a result “they’ve been removed from the list.” Oral Arg. at 42:20–42:38. Exemption 5 provides no protection for such

factual information.

Because Exemption 5 covers only those portions of the documents that are both predecisional and deliberative, OMB

has failed to meet its burden of demonstrating that Exemption22

5 covers the documents in their entirety. Accordingly, OMB must release all responsive portions of document 2, as well as all portions of documents 1 a nd 3 to 14 that are not both predecisional and de liberative. Although the district court determined that all segregable portions of the documents had been released, Pub. Citizen, Inc.

, 520 F. Supp. 2d at 157–58, it evaluated the documents only under Exemption 2, which we have concluded does not apply, see supra at 13. The Exemption 5 segregability analysis requires a different inquiry, one that focuses on th e predecisional and deliberative

nature of the documents’ content. As to documents 1 and 3 to 14, then, we think it best for th e district court to conduct this inquiry in the first instance.

III.

For the foregoing reasons, we reverse in part and remand

for the district court to order the release of document 2; to

determine consistent with this opinion whether certain limited portions of documents 1 and 3 to 14 are predecisional and sufficiently reflect the give and take of the deliberative process to warrant continued redaction; and to order the

release of those documents w ith appropriate redaction if

necessary.

So ordered.W ILLIAMS

, Senior Circuit Judge, concurring in part and dissenting in part: This case concerns fourteen documents relating to the role of the O ffice of Management and Budget (“OMB”) in clearing executive (and “independent”) agencies’ legislative and budget proposals to Congress. The appellant, Public Citizen, contends that the Freedom of Information Act (“FOIA”) requires OMB to disclo se these documents in their entirety. OMB argues that the undisclosed portions of the documents are exempt from disclosure under FOIA Exemptions 2 and 5. The district court granted summary judgment to OMB on the basis of Exemption 2. The majority today finds Exemption 2 inappli cable, and remands for further consideration of Exemption 5. I believe that OMB established the first of two requirements for withholding under Exemption 2, and that the case should be re manded for clarification as to the second requirement. I concur, however, in the court’s disposition of OMB’s assertion of Exemption 5.

* * *

Exemption 2 covers documents that are “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). We have long interpreted the exemption more broadly than its language immediately suggests. As currently understood, the exemption’s threshold requirement is that the documents must be “used for predominantly internal purposes.” Schiller v. NLRB , 964 F.2d 1205, 1207 (D.C. Cir. 1992) (quoting Crooker v. Bureau of Alcohol,

Tobacco & Firearms , 670 F.2d 1051, 1073 (D.C. Cir. 1981)). Documents satisfying that criterion may be withheld if they “deal with trivial administrative matters” (the “low 2” exemption) or if “disclosure . . . would risk circumvention of agency statutes and regulations” (the “high 2” exemption). Id

. As the documents clearly deal with non-trivial matters, the “high 2” exemption is the releva nt one. I will discuss the two2

requirements—predominant internality and circumvention of

law—in turn.

Predominant internality. Whether these documents are predominantly internal depends on their content and function. Public Citizen understandably inferred from the titles of the documents—for example, “Agencies Exempt from the Legislative Clearance Process”—that they contain OMB’s policies regarding which agen cies may bypass the clearance process by which OMB reviews agency submissions to Congress. In addition, the documents were supplied by OMB in response to a request for reco rds “listing agencies that may” directly submit legislative and budget proposals to Congress

without OMB clearance. Plaintiff’s inference, nonetheless, is a bit of an oversimplification.

First, the Assistant Director for Legislative Reference of the OMB stated flatly in his affidavit that the documents “do not represent or set forth OMB’s ‘official position’ (so to speak) regarding which agencies may, or may not, submit legislative materials directly to Congress.” Jukes Am. Decl. at 14. See also Office of Mg mt. & Budget, Executive Office of the President, OMB Circ ular No. A-19, Legislative

Coordination and Clear ance (1979), posted at http://www.whitehouse.gov/omb/ circulars/a019/a019.html (“Coverage. All executive branch agencies (as defined in section 5b) are subject to the provisions of this Circular, except those agencies that are specifically required by law to transmit their legislative propos als, reports, or testimony to the Congress without pr ior clearance.”).

Second, in camera examination shows that insofar as the documents guide the conduct of OMB personnel at all, they

do so in relation not to the clearance process but to another3

aspect of OMB’s relation to agencies. The documents contain no instructions to OMB personnel to allow some agencies but not others to bypass the clearance process. Documents 1 and 3-14, which are memos from the OMB’s Assistant Director for Legislative Clearance to OMB staff, do contain other instructions making clear the documents’ real purpose. Specifically, the memos instruct the OMB staff not to automatically refer material to “bypass” agencies, so as to avoid letting the agencies forwar d such material to Congress. See, e.g., Jim Jukes, Memorandum for OMB Policy Officers and DADs [acronym unexplaine d] (Feb. 20, 2001) (“[The Legislative Reference Division’s] longstanding practice is to determine, on a case-by-case basis, whether or not to refer material for review to a ‘bypass’ agency. . . . In general, an OMB referral is not made to a ‘bypass’ agency unless theagency agrees to refrain from forwarding to Congress OMBreferred material or its respons e to an OMB referral.”) In other words, to the extent th at the documents had a function beyond explaining what bypa sses are and which agencies

have asserted a right to bypass, it was to instruct employees on how those agencies should be treated in the referral

process

.

The majority opinion hints that the memos contain a policy concerning which agenci es may bypass the clearance process. It relies on Document 1’ s statement that “[f]orty four Federal agencies currently have some form of . . . ‘bypass.’” Maj. Op. at 12 (quoting Jim Jukes, Memorandum for OMB Policy Officers and DADs (Fe b. 20, 2001)). In context, though, it is clear that this is a statement of fact concerning which agencies have assert ed bypass authority, not an

endorsement of their claims or even a statement of OMB assessment of or response to those claims. See Bypass Agencies 5 (Feb. 2001) (explaining that informal bypasses are4

asserted by several agencies without explicit authority, and that although Circular A-19 doe s cover these agencies they “generally do not comply with its provisions.”).

The panel’s next argument on this point similarly

confuses a factual statement w ith a policy. It relies on the

Assistant Director’s statement that the documents “seek to summarize the currently-held internal-OMB perspectives and views regarding which Federal agencies have a basis—in statute or in prior agency and OMB practice—for not submitting [materials for OMB clearance].” Jukes Am. Decl. at 13. All this means, however, is that the documents list all the agencies which may view themselves as exempt from the clearance process, whether this is because of a statute, the agency’s own prior practice, or some combination of the agency’s practice and OMB’s re sponse to it. Consider, for example, Document 1’s treatment of the Federal Trade

Commission “FTC”: “The FTC has no statutory legislative bypass but acts as if it does . . . . OMB has made no effort in recent memory to subject the FTC to the requirements of Circular A-19.” Bypass Agencies 19 (Feb. 2001). The document explains why the FTC might have a “basis” in its own practice, as well as OMB’s recent actions, to think of itself as a bypass agency. It does not, however, endorse the FTC’s claim to bypass authority or adopt a policy of not attempting to get the FTC to comply with Circular A-19.

The panel further argues that if the documents really just recorded past OMB practice—rath er than setting out a policy of OMB acquiescence in these agencies’ behavior—OMB would not worry about sharing information with them. As my colleagues put it, “If the listed agencies had no bypass authority, OMB would have no re ason to avoid sharing other agency proposals with them.” Maj. Op. at 14. Again the5

analysis confuses a pattern of successful agency bypass with OMB policy. Even if OMB made every possible effort to subject the FTC or some othe r informal bypass agency to Circular A-19, it would still se nsibly worry about sharing information with that agency—unless and until its efforts proved successful. The panel’s theory simply assumes that OMB has enforcement power; but we have no basis for inferring such power’s existence.

In support of its view th e panel invokes a couple of passages from oral argument. I hesitate to draw serious conclusions from a muddled colloquy in which the judges

more than once declared that they could not understand

counsel’s answers. Or al Arg. at 35:30-35:35; id at 36:05- 36:15. As the panel’s conviction that the materials disclose

“secret law” turns on an unde rstanding of OMB enforcement power, we should at the very l east remand for a determination that such power exists rather than rely on inferences from highly ambiguous statements at oral argument by a counsel to whom our questions appeared extremely unclear.

In any event, counsel’s answ ers fall far short of a clear claim to effective power to insi st that all agencies submit proposals for OMB review before submission to Congress. The statement of OMB counsel at oral argument that OMB “always [has] the power as granted by the Executive Order, by the Circular, by the memo of February 15, 2001 to say ‘we want to look at this,’ and [it] can always do that,” see Maj. Op. at 15 (quoting Oral Arg. at 37:24-37:33), does nothing to establish enforcement power. Quite literally, counsel observed that OMB had the power to “ say ” to agencies that they should turn over the specified type of document. It brings to mind Hotspur’s famous rejoinder to Glendower:6

Glendower: I can call spirits from the vasty deep.

Hotspur: Why, so can I, or so can any man; But will they come when you do call for them?

At most it suggests that OMB has a legal right to require certain agencies to participate in the clearance process, quite distinct from an effective enforcement power.

The majority also points to an exchange in which a judge asked counsel whether OMB “even with respect to those agencies not statutorily exempt will for particular pieces of legislation exercise its re view function,” and counsel responded, “if it chooses that it should at a particular time, it will.” Maj. Op. at 15 (quoting Oral Arg. at 35:35-36:00). Counsel was primarily asserti ng that OMB can’t make “any decisions about agencies and their ability to go around OMB,” Oral Arg. at 34:30-34:38. But it does, he argued, have some discretion with regard to specifi c legislative proposals: “It can make a decision, for example, when a [proposed?] statute comes to it, that this particul ar statute does not need to go through a review process.” Id . at 34:59-35:05. Counsel’s answer to the question, then, me rely reaffirms his point that OMB has discretion over “particula r pieces of legislation.” It does not establish that agencies would comply, and it certainly does not establish that pieces of legislation would “come to [OMB]” before going to Congress. Indeed, elsewhere counsel noted that OMB frequently does not even know about agencies’ legislative proposals until they are introduced in Congress. Oral Arg. at 36:21-36:33. In short, the OMB’s own description of the documents is fair: the documents “serve as the OMB’s ‘intellig ence’ on other agencies’ views regarding the nature of their obligations in the legislative clearance process” and they are used to help OMB personnel7

“determine the nature of their interactions” with those agencies. Appellee’s Br. at 13.

We must evaluate these documents under the predominant internality test established in Crooker v. Bureau of Alcohol, Tobacco & Firearms , 670 F.2d 1051, 1073 (D.C. Cir. 1981), read in the light of the Crooker en banc court’s preservation of the holding of an earlier case, Jordan v. DOJ

, 591 F.2d 753, 763 (D.C. Cir. 1978). In Jordan we had held that the Justice Department’s prosecutorial guidelines did not fall within the scope of Exemption 2. Crooker rejected much

of Jordan ’s legal analysis, 670 F.2d at 1073, and held that an agent’s training manual of the Bureau of Alcohol, Tobacco & Firearms (BATF), governing law enforcement investigation techniques, was covered by Ex emption 2 because it was predominantly internal and its disclosure significantly risked circumvention of the law, id. at 1053. Crooker said, however, that its new approach would not have changed the result in

Jordan because nothing in the Jordan opinion suggested that

disclosure would risk circumve ntion of the law and, in any event, the documents at issue were not predominantly internal.

Id . at 1075.

Crooker conceded that the investigatory technique policies described in the withheld portions of the BATF manual had an effect on the public at large, as would almost any agency policy. Id . at 1073. The court found “critical,” however, that “the manual is us ed for predominantly internal purposes; it is designed to esta blish rules and practices for agency personnel . . . ; it involves no ‘secret law’ of the agency . . . .” Id. The prosecutorial guidelines in Jordan , on the other hand, were “a source of ‘secret law,’ as important to the regulation of public behavior as if they had been codified.”

Id. at 1075.8

As applied to documents by which an agency guides its personnel in conduct affecting othe rs, the distinction our cases draw seems a bit metaphysical, i.e. , difficult to operationalize. As to any such document, it is possible to assert, with equal plausibility, that its “prima ry” purpose is to guide the agency’s employees or , by guiding the employees’ conduct, to

affect the outside world. The puzzle is highlighted by Schiller

v. NLRB , 964 F.2d 1208 (1992), where we confronted documents concerning the NLRB’s litigation strategies with reference to the Equal Access to Justice Act. Of course the “prosecutorial strate gies” at issue in Jordan might be viewed as simply a subset of “litigation strategies.” Yet, while the NLRB strategies clearly a ffected outsiders—and were presumably intended to influence the other parties’ behavior—we said that they merely “establish[ed] rules and practices for agency personnel, and Mr. Schiller has given us no reason to think that the documents contain any ‘secret

law.’” Id. at 1207. Accordingly we found them predominantly internal. Similarly, in Nat’l Treasury Employees Union v. U.S. Customs Serv. (“ NTEU”) , 802 F.2d 525, 531 (D.C. Cir. 1986), we classi fied statements of criteria for agency employment as predominantly internal (a conclusion indirectly bolstere d, of course, by the documents’ clearly relating to “personnel”).

Must we then throw up our hands and arbitrarily choose one of two contradictory asse rtions? I think not. Two features may usefully distinguish Jordan from the three later

cases. As we described Jordan in Crooker , the strategies we characterized as secret law were “as important to the regulation of public behavior as if they had been codified.”

670 F.2d at 1075. To the extent that the prosecutorial guidelines were the equivalent of flat-out no-prosecution rules, they switched the conduct in question from unlawful to9

de facto lawful, as would, for example, a clear determination not to prosecute marijuana offenses. Thus they (1) impacted primary conduct and, as we understood them, (2) they did so unequivocally (“as if they had b een codified”). By contrast, the investigative techniques in Crooker , the litigation strategies in Schiller , and the employment criteria in NTEU appear to have been aimed at peripheral activity: in Crooker at parties’ concealment strategies; in Schiller at their behavior in agency adjudications; in NTEU at their role as job applicants. (Of course if persons dedicate d to a career with the U.S. Customs were fully informed a bout the documents withheld in

NTEU , they might mold their career paths to meet its interests; but such an effect seems remote enough to justify our having viewed the documents as predominantly internal.)

At bottom, the policy expresse d in the documents here is

no more than a set of instructi ons to agency staff on how to bargain with other agencies on an issue much less connected to their primary conduct than submission to OMB approval of their legislative or budget proposals, to wit, the dissemination of information. See Jukes Memorandum (Feb. 20, 2001). This external effect seems about as remote from the public’s primary conduct as one can imagine. Nor do these documents regulate the primary conduct of other agencies (assuming for the moment that doing so would bring them within the scope

of Jordan ); they deal only with the agencies’ horse-trading

with OMB on issues of bureaucr atic information exchange— the referral process. The panel characterizes that process as “a key part of the legislative cleara nce process.” Maj. Op. at 13. But OMB’s referral leverage strategies seem to stand in relation to the basic clearance process in much the way the criminal investigative procedures, administrative litigation strategies, and agency employ ment criteria at issue in

Crooker

, Schiller and NTEU relate to criminal law10

enforcement, administrative policy, and agency management of personnel, i.e., so periphera lly to the affected subjects’ primary conduct that they are pr operly seen as “predominantly

internal.”

Second, the documents are not at all comparable to any kind of codification; within their mandate, one can easily imagine temporary, partial accommodations. While the bargaining strategy may well force other agencies to make a choice, it is a far cry from the decriminalization of a whole

class of conduct.

The majority summarizes its view with the declaration that where “agency documents have significant external effects on other government agencies, we cannot deem them ‘predominantly internal.’” Id. at 16. I note that this is the first

case ever in which a document’s “external effects” operate in

the first instance on other federa l agencies. I do not regard that fact as dispositive: if the initial impact fell on another government agency in such a way as to have clearly defined effects on the public’s primary conduct, it would not make sense to view the documents as “predominantly internal.” And quite possibly an agency policy seriously impacting other agencies’ primary conduct would fail the internality test. Neither effect is present here . The case fits comfortably

within Crooker

, Schiller and NTEU

.

Circumvention of the law. The second prong of the “high 2” exemption is met if “disclosure would significantly risk circumvention of agency regulations or statutes.” NTEU , 802

F.2d at 528. NTEU illustrates how we apply the criterion. There we observed that because the agency’s evaluation procedures were supposed to measure “actual experience and proven ability,” in theory “adva nce knowledge of their content11

should not affect the rati ng of the candidates.” Id. at 529. This conclusion would hold, howev er, only “if all applicants can be depended upon to be meticulously correct in describing their past experience and thei r quantified or quantifiable

abilities.” Id. In fact, affidavits from agency individuals suggested that applicants c ould embellish many aspects of their applications “in a manner that is not strictly fraudulent, or that cannot be proven to be fraudulent.” Id. In light of these affidavits, we found “that release of the plans creates a significant risk that the Serv ice’s applicant evaluation program will be seriously compromised.” Id.

Here OMB expresses the concer n that if other agencies “knew OMB’s beliefs concerning their views or the views of sister agencies, they could use this information to impede and frustrate legislative clearance requirements,” Appellee’s Br. at 26, thus circumventing the legi slative clearance process set

out in Circular A-19. Thus the claim does not appear to relate

to the documents’ normative instructions on referral of documents to bypass agencies. As in NTEU , in theory the

information in the documents should not affect whether or not an agency is subject to the cl earance process. In practice, however, this may hold only if ag encies approach the process with meticulous integrity. It is not fanciful to imagine that they might change their be havior in response to the information. Indeed, the ma jority believes that the explanation of OMB’s policies has “significant external effects on the behavior of other ag encies.” Maj. Op. at 15. To the extent that agencies are willing to game the system, the information in these documents could help them do so.

OMB’s submissions on this issue, however, are on the vague side. The Assistant Dir ector for Legislative Reference

of the OMB said in his affidavit that disclosure of these12

materials “would reveal aspect s of OMB’s evaluative process concerning submission of agencies’ documents to Congress

without OMB’s clearance and th e manner in which relevant opinions and recommendations were formed.” Jukes Decl. at

11. But this statement, rather than being addressed directly to circumvention, seems simply to assert the raw truism that forced disclosure will reveal something about OMB’s thinking process. The issue, though, is how agencies might use those insights to undermine OMB’s effo rts to assure compliance.The record on that problem being too opaque for a wellfounded decision, I would remand to the district court for further proceedings. See Sussman v. United States Marshal

Serv ., 494 F.3d 1106, 1113 (D.C. Cir. 2007).

* * *

My colleagues argue that the documents at issue in this

case “lie at the core of what FOIA seeks to expose to public scrutiny.” Maj. Op. at 16. Disclosure is, of course, FOIA’s primary policy. See Crooker , 670 F.2d at 1074. But as

Crooker reminds us, “it will not do for us to act on the primary purpose of the statute to the exclusion of all other express congressional concerns,” such as “preserving the effective operation of governmental agencies.” Id. Here, the effectiveness potentially at stake is the President’s ability to corral the government’s far flung agencies, many if not all of them beholden to interest groups whose agenda may not track the President’s, into support of a common, coherent program. A fair application of the test developed by Crooker demonstrates that the documents are predominantly internal. If further proceedings establis h that their disclosure risks circumvention of the law, as seems quite plausible, OMB should be able to protect them . I would therefore remand for a better grounded decision on the circumvention issue.