The Honorable Michael J. Melloy, Chief Judge, United States District Court

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for the Northern District of Iowa, sitting by designation. 

The Honorable Scott O. Wright, United States District Judge for the Western 2

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-3774

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State of Missouri, ex rel David A. *

Shorr, *

 *

Plaintiff-Appellant, * Appeal from the United States

 * District Court for the

v. * Western District of Missouri. 

 *

United States Army Corps of *

Engineers, *

 *

Defendant-Appellee. *

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 Submitted: May 12, 1998

 Filed: June 18, 1998 

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Before BEAM and MURPHY, Circuit Judges, and MELLOY, District Judge. 1

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MURPHY, Circuit Judge.

In this action the State of Missouri seeks disclosure of a document from the

United States Army Corps of Engineers (Corps) under the Freedom of Information Act

(FOIA), 5 U.S.C. § 552. The district court granted summary judgment to the Corps 2
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on the ground that the document is exempt from disclosure under 5 U.S.C. § 552(b)(5).

Missouri appeals from the judgment, and we affirm.

The Corps is in the process of updating the Missouri River Master Water Control

Manual to describe how the Corps intends to operate the Missouri River reservoirs and

preparing an environmental impact statement (EIS) in accordance with the National

Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347. As part of this process,

the Corps published a draft EIS endorsing a plan to aid the reproduction of a type of

fish known as the pallid sturgeon, an endangered species. The plan apparently could

also have the effect of reducing the amount of water available to Missourians. The

United States Fish and Wildlife Service (USFWS) meanwhile drafted a biological

opinion stating that the proposal would actually imperil the pallid sturgeon.

David Shorr, the Director of the Missouri Department of Natural Resources,

made a FOIA request on behalf of the state demanding disclosure of all “intra-agency

communications discussing the pallid sturgeon.” The particular document which is the

subject of this appeal is an intra-agency memorandum on the pallid sturgeon. The

Corps refused to disclose it, relying on the FOIA deliberative process privilege, which

exempts from disclosure “inter-agency or intra-agency memorandums or letters which

would not be available by law to a party other than an agency in litigation with the

agency.” See 5 U.S.C. § 552(b)(5) (“Exemption 5”). The district court concluded

nondisclosure of the memo was justified by Exemption 5. 

The purpose of the deliberative process privilege is to allow agencies freely to

explore alternative avenues of action and to engage in internal debates without fear of

public scrutiny. See Assembly of State of Cal. v. United States Dep&t of Commerce,

968 F.2d 916, 920 (9th Cir. 1992). Exemption 5 to the FOIA permits nondisclosure if

the document in question is an inter- or intra-agency memorandum which is both

predecisional and deliberative. Id. at 920-21. A predecisional document is one which

is designed to assist agency decisionmakers in arriving at their decisions and which
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contains the personal opinions of the writer rather than the policy of the agency. Id.

A document is deliberative if its disclosure would expose the agency&s decision-making

process in a way that would discourage candid discussion and thus undermine the

agency&s ability to perform its functions; the focus is on whether the document is part

of the agency&s deliberative process. Id. 

We have examined the sturgeon memo and agree that it is protected from

disclosure by Exemption 5. The memo is a two-and-one-half page document which

was written by Acting Deputy Director Warren J. Mellema on August 23, 1994 and

circulated to staff. It consists of some general comments about the USFWS draft

biological opinion, as well as specific comments responding to particular paragraphs

of the opinion. The sturgeon memo is actually an excellent example of the kind of

document Exemption 5 is designed to protect. It is the frank reaction of an individual

with significant responsibility to the draft biological opinion, designed to assist agency

decisionmakers in formulating final agency policy by candidly critiquing the

development of the proposed policy. Premature disclosure of critical comments while

policy is being formulated would discourage free ranging criticism and consideration

of alternatives within an agency and would not be in the public interest. 

Missouri advances several arguments why the memo should nevertheless be

disclosed. First, Missouri argues that disclosure is required by NEPA, by a regulation

from the Council on Environmental Quality (CEQ), and also by fundamental fairness.

Although NEPA contemplates public participation, we do not agree that NEPA

necessitates disclosure of internal agency memoranda which are generated as part of

the agency&s deliberative process in preparing its EIS. Rather, NEPA&s statutory

language specifically indicates that disclosure to the public is to be in accord with

FOIA, which includes Exemption 5. See 42 U.S.C. § 4332(C) (EIS shall be made

available to public in accord with 5 U.S.C. § 552). The CEQ regulation does not

control, as it applies only to inter-agency memoranda, and the sturgeon memo is an

intra-agency communication. See 40 C.F.R. § 1506.6(f) (1997) (requiring agencies to
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make “any underlying documents available to the public pursuant to [FOIA], without

regard to the exclusion for interagency memoranda where such memoranda transmit

comments of Federal agencies on the environmental impact of the proposed action”).

We also do not see how nondisclosure would hinder fundamental fairness. The

sturgeon memo provides no new factual data which could be used by Missouri to

formulate its position on development of the Corps& final EIS. The memo merely

comments on the USFWS biological opinion, which has already been disclosed to the

public. Furthermore, nondisclosure does not preclude Missouri from commenting on

either the Corps& draft EIS or the USFWS opinion.

Missouri maintains that the Corps has failed to show how the deliberative

process would be adversely affected by disclosing the sturgeon memo. Perhaps a fuller

description by the Corps of the sturgeon memo and why it is exempt might have

avoided this litigation, but it was not improper for the Corps to conclude that open and

frank intra-agency discussion would be “chilled” by public disclosure of this memo

generated as part of the agency&s deliberative process. 

Finally, Missouri argues that the Corps was required to disclose the sturgeon

memo in accord with agency policy which mandates disclosure unless the document

is exempt under FOIA and a significant reason exists for nondisclosure. As we have

previously discussed, however, Exemption 5 protects the memo from nondisclosure,

and the Corps was entitled to conclude that disclosure would imperil its agency

functions by stifling internal debate and discussion on the merits of its draft EIS in light

of the USFWS opinion.

Our examination of the sturgeon memo persuades us that Exemption 5 justified

the Corps& decision not to disclose it to the state. Accordingly, we affirm the judgment

of the district court.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.