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 

PUBLIC CITIZEN, INC., 

APPELLANT

v. 

OFFICE OF MANAGEMENT AND BUDGET, 

APPELLEE

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: ROGERS and TATEL, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge TATEL. 
2 

Opinion concurring in part and dissenting in part filed by 

Senior Circuit Judge WILLIAMS. 

TATEL, Circuit Judge: Seeking to learn which federal 

agencies submit materials to Congress without prior clearance 

by the Office of Management and Budget, Public Citizen, a 

non-profit public interest organization, filed a Freedom of 

Information Act request for documents related to OMB’s 

legislative and budgetary clearance 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 documents. 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 materials be both predecisional and

deliberative, it likewise provides no protection for the 

majority of the documents’ content. 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 predecisional 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 President prepare the federal 

budget and ensures that legislation, testimony, reports, and 

policies prepared by other federal agencies are consistent with 

Administration policy. Two OMB circulars require federal 
3 

agencies to clear materials with OMB before submitting them 

to Congress: Circular No. 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.” OFFICE OF 

MGMT. & BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT,

OMB CIRCULAR NO. A-19, LEGISLATIVE COORDINATION AND 

CLEARANCE ¶ 8(C) (1979) (“CIRCULAR NO. 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 available list of agencies that 

transmit their materials to Congress without prior OMB 

clearance—so-called “bypass agencies”—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 that 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 budget-related materials to 

Congress without receiving OMB clearance or 
4 

providing statutory authority for agencies or an 

agency 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 documents 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 twenty 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 fourteen 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 the current version and various 

outdated versions of a memo to OMB staff from OMB’s 

Assistant Director for Legislative Reference. James Jukes 

Am. Decl. Attach. A at 1. The memo provides “a background 

discussion of legal and statutory issues related to bypass 

authorities, a list of the bypass agencies and a summary 

description of the agencies’ budgetary and legislative ‘bypass’ 

authorities and a discussion 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 straightforward 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 request, or information, any 

legislative recommendation, or prepared testimony 

submitted to the President or a Federal Agency shall 

be concurrently transmitted to Congress. No Federal 
6 

official or agency can require prior review of the 

Board’s budgetary or legislative 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 for 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 reason to address whether they 

also qualified under Exemption 5. Id. at 156. 

Public Citizen appeals, arguing 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 protect 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 reflects “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 presumption 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 internal personnel rules and practices 

of an agency.” § 552(b)(2). Despite the statute’s reference to 

documents related “solely” to internal 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 “high 2” exemption in two key 

cases. In Jordan v. United States Department of Justice, 591 
8 

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 regulate members of the public. 

Knowledge of those regulations may be as significant to 

members of the public as is knowledge of statutory sentencing 

provisions.” Id. at 1075. As to the document at issue in 

Crooker itself—a Bureau of Alcohol, Tobacco and Firearms 

manual describing law enforcement 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 those 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 of 
9 

the Agency.” Pub. Citizen, 520 F. Supp. 2d at 155. Echoing 

these reasons, OMB now argues that the documents are 

predominantly internal because they have never been released 

outside OMB, are used by OMB personnel in internal policy 

discussions, and contain “‘a description of the views and 

perspectives of OMB officials’ interpretations of the 

views of certain agencies regarding 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 public 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 and 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 internal 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 internal 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 prosecutorial 
10 

guidelines we found not predominantly 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]nowledge 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 government 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 government 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 personnel policy of an 

agency. . . . A construction of (b)(2) exempting the 

Civil Service Commission reports 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 function involves oversight and 
11 

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 regulate public behavior[,] only to 

observe it.’” Appellee’s Br. 17 (quoting Crooker, 670 F.2d at 

1075) (alteration in original). Evaluating this argument 

requires a more detailed understanding of the documents’ 

content, purpose, and use. Public 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 characterization, 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 opposite. For example, document 

2, entitled “Agencies Exempt from the Legislative Clearance 

Process,” lists those agencies having statutory bypass 

authority but also includes a separate block of text, redacted 

by OMB, suggesting that the list of agencies considered 

“exempt” from the clearance process includes something 

more than just those with statutory 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 Federal 
12 

agencies currently have some form of legislative and/or 

budgetary ‘bypass.’ [These include] agencies with . . . nonstatutory (i.e., ‘informal’) legislative ‘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 policy 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 correct 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 prosecutorial guidelines found subject 

to disclosure in Jordan, the documents determine OMB’s 

interaction with outsiders—an interaction 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 forwarding to Congress OMB-referred 

material or its response to an OMB referral.” 2001 Jukes 

Mem. 1. The documents thus list those agencies required by 

OMB to act differently than most federal agencies, either by 

agreeing not to forward OMB materials to Congress or by 
13 

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 that non-bypass agencies receive 

and must incorporate into their congressional submissions. 

The list of bypass agencies thus stands in marked contrast to 

the publicly available policy reflected in Circulars A-11 and 

A-19. As we have repeatedly explained, FOIA provides no 

protection for such “secret law” 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 exchange,” Dissenting Op. at 9, but 

Circular A-19 makes plain that this 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.” CIRCULAR NO. A-19 ¶ 3. Upon 

receiving a submission from a non-bypass agency, OMB 

“undertake[s] the necessary coordination with other interested 

agencies of an agency’s proposed legislation or report,” 

including requesting “other agency views within specified 

time limits.” Id. ¶ 8(a)(1). Referral of an agency submission 

to other agencies for comment thus 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 affect 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 purpose” as limited to the interagency referral process. Dissenting Op. at 3. As noted above, 

however, on their face the documents strongly suggest that 

they do in fact represent the list of agencies allowed to bypass 

the process. To be sure, Assistant Director Jukes asserted that 

the documents do not represent OMB’s “official policy” on 

which agencies may bypass, Jukes Am. Decl. ¶ 28, but an 

agency may not avoid FOIA by deeming its de facto policy 

“unofficial.” Moreover, Jukes himself describes the 

documents as summarizing OMB’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 listed agencies’ asserted bypass 

authority. If the listed agencies 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 informal 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 [agency] 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 process. Moreover, at oral argument 

OMB counsel repeatedly insisted that OMB can require 

agencies to submit proposed legislation for clearance. For 
15 

example, asked whether OMB “even with respect to these 

agencies not statutorily exempt will for particular pieces of 

legislation exercise its review 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 analysis, 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 salient characteristics of agencies 

that receive differential treatment is as significant to those 

outside OMB as knowing the agencies’ identities. For 

example, portions of the summaries 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 agencies differently, they have 

significant external effects on the 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 “interpretations of the 

views of certain agencies regarding legislative clearance 

requirements,” Appellee’s Br. 12, also fails. To begin with, 
16 

the summaries hardly seem interpretive: they consist 

primarily of quotations from agencies’ governing statutes and 

statements that a given agency interprets 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 summaries 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. Attach. at 19. But even if such 

statements represent OMB’s interpretations of other agencies’ 

views, they nonetheless describe 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 with other government agencies. 

As we have explained, “the strong 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 because “even assuming that the 
17 

guidelines . . . may aid some individuals 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 disclosure 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 recommendations 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 are both “predecisional” and 

“deliberative.” Id. “We deem a document predecisional if it 

was generated before the adoption 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 issue 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 deliberative 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 application 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 frequently 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 deliberative only if they “reflect[] 

advisory opinions, recommendations, 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 documents at issue in this case 

neither make recommendations for policy change nor reflect 

internal deliberations on the advisability of any particular 

course of action, they are not predecisional and deliberative 

despite having been produced by an agency that generally has 

an advisory role. And although it might well be difficult to 
19 

determine at what point OMB’s recommendations about the 

suitability of a particular piece 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 inherently 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 decision 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 predecisional 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 confidentiality. Absent such 

assurances, OMB may well decide on a case-by-case basis 

whether to request a bypass agency’s informal comments on a 

particular piece of proposed legislation. 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 classifying the documents as 

predecisional, OMB argues that they “serve as a starting point 

for discussions within OMB concerning 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 document 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 reflect 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 deliberative 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 bypass 
21 

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. Similarly, 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 and current state of affairs, 

OMB may withhold only those portions 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 clearance. While OMB may be 

right that such a list does not establish the “fact” that an 

agency actually possesses undisputed 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 Exemption 
22 

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 and 3 to 14 that are not both 

predecisional and deliberative. 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 the predecisional and deliberative 

nature of the documents’ content. As to documents 1 and 3 to 

14, then, we think it best for the 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 with appropriate redaction if 

necessary. 

So ordered. 
WILLIAMS, Senior Circuit Judge, concurring in part and 

dissenting in part: This case concerns fourteen documents 

relating to the role of the Office 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 disclose 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 inapplicable, 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 remanded 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 relevant one. I will discuss the two 
2

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 agencies 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 records “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 Mgmt. & Budget, Executive Office 

of the President, OMB Circular No. A-19, Legislative 

Coordination and Clearance (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 proposals, reports, or testimony to 

the Congress without prior 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 another 
3

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 forward such material to Congress. 

See, e.g., Jim Jukes, Memorandum for OMB Policy Officers 

and DADs [acronym unexplained] (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 the 

agency agrees to refrain from forwarding to Congress OMBreferred material or its response to an OMB referral.”) In 

other words, to the extent that the documents had a function 

beyond explaining what bypasses 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 agencies 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 (Feb. 20, 2001)). In context, 

though, it is clear that this is a statement of fact concerning 

which agencies have asserted 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 are 
4

asserted by several agencies without explicit authority, and 

that although Circular A-19 does cover these agencies they 

“generally do not comply with its provisions.”). 

The panel’s next argument on this point similarly 

confuses a factual statement with 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 response 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—rather 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 reason to avoid sharing other 

agency proposals with them.” Maj. Op. at 14. Again the 
5

analysis confuses a pattern of successful agency bypass with 

OMB policy. Even if OMB made every possible effort to 

subject the FTC or some other informal bypass agency to 

Circular A-19, it would still sensibly 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 the 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. Oral 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 understanding of OMB enforcement 

power, we should at the very least 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 answers fall far short of a clear 

claim to effective power to insist 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 review 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 asserting 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 specific legislative proposals: “It can 

make a decision, for example, when a [proposed?] statute 

comes to it, that this particular statute does not need to go 

through a review process.” Id. at 34:59-35:05. Counsel’s 

answer to the question, then, merely reaffirms his point that 

OMB has discretion over “particular 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 ‘intelligence’ on other agencies’ views 

regarding the nature of their obligations in the legislative 

clearance process” and they are used to help OMB personnel 
7

“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 Exemption 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 circumvention 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 used for predominantly internal 

purposes; it is designed to establish 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 others, 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 “primary” 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 strategies” at issue in Jordan might be viewed 

as simply a subset of “litigation strategies.” Yet, while the 

NLRB strategies clearly affected 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 classified statements of criteria 

for agency employment as predominantly internal (a 

conclusion indirectly bolstered, of course, by the documents’ 

clearly relating to “personnel”). 

Must we then throw up our hands and arbitrarily choose 

one of two contradictory assertions? 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 to 
9

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 been 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 dedicated to a career with the U.S. 

Customs were fully informed about 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 expressed in the documents here is 

no more than a set of instructions 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 bureaucratic information exchange—

the referral process. The panel characterizes that process as “a 

key part of the legislative clearance 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 employment criteria at issue in 

Crooker, Schiller and NTEU relate to criminal law 
10

enforcement, administrative policy, and agency management 

of personnel, i.e., so peripherally to the affected subjects’ 

primary conduct that they are properly 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 federal 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 “advance knowledge of their content 
11

should not affect the rating of the candidates.” Id. at 529. 

This conclusion would hold, however, only “if all applicants 

can be depended upon to be meticulously correct in describing 

their past experience and their quantified or quantifiable 

abilities.” Id. In fact, affidavits from agency individuals 

suggested that applicants could 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 Service’s applicant evaluation 

program will be seriously compromised.” Id. 

Here OMB expresses the concern 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 legislative 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 clearance process. In practice, 

however, this may hold only if agencies approach the process 

with meticulous integrity. It is not fanciful to imagine that 

they might change their behavior in response to the 

information. Indeed, the majority believes that the 

explanation of OMB’s policies has “significant external 

effects on the behavior of other agencies.” 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 Director for Legislative Reference 

of the OMB said in his affidavit that disclosure of these 
12

materials “would reveal aspects of OMB’s evaluative process 

concerning submission of agencies’ documents to Congress 

without OMB’s clearance and the 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 efforts 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 establish 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.