T he Honorable Michael J. Melloy, Chief Judge, United States District Court 1 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

___________ No. 97-3774

___________ 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. *

___________ Submitted: May 12, 1998 Filed: June 18, 1998

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

___________ MURPHY, Circuit Judge.
In this ac tion the State of Missouri seeks disclosure of a document from th e 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 2-2-

on the ground that the document is exempt from disclosure u nder 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 Con trol Manual to describe how the Corps intends to operate the Mi ssouri River reservoirs and preparing an environmental impact statement (EIS) in accordance with the Nationa l 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 fis h 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. Th e UnitedStates Fish and Wildlife Service (USFWS) meanwhile drafted a biologica l 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 reques t 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. Th e Corps refused to disclose it, rely ing on the FOIA deliberative process privilege, which exempts from disclosure “inter-agency or intra-agency memorandums or letters which would n ot be available by law to a party other than an agency in litigation with th e agency .” See 5 U.S.C. § 552(b)(5) (“Exemption 5”). The district court conclude d nondisclosure of the memo was justified by Exemption 5.
The purpose of the deliberative process privilege is to allow agencies freely to explore alternative a

venues 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 bot h 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-3-

con tains the personal opinions of the writer rather than the policy of the agency. Id

. A document is deliberative if its disclosure would expose the a gency & s decision-making process in a way that would discourage candid discussion and thus undermine th e agency & s ab ility to perform its functions; the focus is on whether the document is part of the agency & s deliberative process. Id.

We hav e examined the sturgeon memo and agree that it is protected fro m disclosure by Exemption 5. The memo is a two-and-one-half page document whic h
was writte n by Acting Deputy Director Warren J. Mellema on August 23, 1994 an d circ ulatedto staff. It consists of some general comments about the USFWS draf t biological opinion, as well as specific comments responding to particular paragraphs of the opini on. The sturgeon memo is actually an excellent example of the kind o f 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 deci sionmakers in formulating final agency policy by candidly critiquing th e development of the proposed po licy. 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.

Miss ouri advances several arguments why the memo should nevertheless b e disclosed. First, Missouri arg ues that disclosure is required by NEPA, by a regulation from the Counci l on Environmental Quality (CEQ), and also by fundamental fairness. Although NEPA contemplates public participation, we do not agree that NEP A necessitates disclosure of internal agency memoranda which are generated as part of the a gency & s deliberative process in preparing its EIS. Rather, NEPA & s statutor y langua ge 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 mad e availa ble to public in accord with 5 U.S.C. § 552). The CEQ regulation does no t control, as it applies only to inter-agency memoranda, and the sturgeon memo is a n intra-agency communication. Se e 40 C.F.R. § 1506.6(f) (1997) (requiring agencies to-4-

make “any underlying documents available to the public pursuant to [FOIA], without regard t o the exclusion for interagency memoranda where such memoranda transmi t
comments of Federal agencies on the environmental impact of the proposed action”). We also do not see how nondisclosure would hinder fundamental fairness. Th e stu rgeon memo provides no new factual data which could be used by Missouri t o formu late its position on development of the Corps & final EIS. The memo merel y comments on the USFWS biological opinion, which has already been disclosed to the publ ic. Furthermore, nondisclosure does not preclude Missouri from commenting on either the Corps & draft EIS or the USFWS opinion.

Misso uri maintains that the Corps has failed to show how the deliberativ e process would be adversely affected by disclosing the sturgeon memo. Perhaps a fuller descriptio n

by the Corps of the sturgeon memo and why it is exempt might hav e avoided this litigation, but it was not im proper for the Corps to conclude that open and frank intra-agency discussion would be “chilled” by public disclosure of this mem o generated as part of the agency & s deliberative process.
Finally, Missouri argues that the Corps was required to disclose the sturgeo n
mem o in accord with agency policy which mandates disclosure unless the documen t 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 agenc y functions by stifling internal debate and discussion on t he 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.-5-

A true copy.

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