United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 19, 2005 Decided June 17, 2005

No. 04-5204

JUDICIAL WATCH, INC.,

APPELLEE

v.

DEPARTMENT OF ENERGY, ET AL.,

APPELLANTS

Consolidated with

04-5205, 04-5206

Appeals from the United States District Court

for the District of Columbia

(No. 01cv00981)

(No. 01cv02545)

(No. 02cv01330)

Mark B. Stern, Attorney, U.S. Department of Justice, argued

the cause for appellants. With him on the briefs were Peter D.

Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S.

Attorney, Gregory G. Katsas, Deputy Assistant Attorney

General, and Michael S. Raab, Douglas Hallward-Driemeier,

and Lewis S. Yelin, Attorneys.
2

Sharon Buccino and James F. Peterson argued the cause for

appellees. With them on the brief were Jon Devine, Howard M.

Crystal, Eric R. Glitzenstein, and Paul J. Orfanedes.

Before: GINSBURG, Chief Judge, and TATEL and GARLAND,

Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Eight federal agencies appeal

from an order of the district court requiring them to search their

records for, and to give the plaintiffs, certain documents related

to the National Energy Policy Development Group (NEPDG).

The district court rejected the agencies’ claim that the

documents come within Exemption 5 of the Freedom of

Information Act (FOIA), 5 U.S.C. § 552(b)(5), because they

reflect the pre-decisional deliberations of the NEPDG. The

district court also ordered each agency to search for and to

disclose certain records created or maintained by agency

employees who were paid by the agency while they were

working for the NEPDG or another related task force.

We hold that, although the NEPDG was not itself an

“agency” for purposes of the FOIA, the agencies lawfully

withheld, pursuant to Exemption 5, documents bearing upon the

deliberative processes of the NEPDG. We also hold that the

records created or obtained by employees detailed from an

agency to the NEPDG are not “agency records” subject to

disclosure under the FOIA.

I. Background

In 2001 Judicial Watch and the Natural Resources Defense

Council, between them, sued the United States Departments of

Agriculture, Commerce, Energy, the Interior, Transportation,
3

and the Treasury, the Environmental Protection Agency, the

Federal Emergency Management Agency, and the Office of

Management and Budget (since dismissed), alleging the

defendant agencies violated the disclosure requirements of the

FOIA by withholding agency records related to the NEPDG,

which President George W. Bush had established earlier that

year for the purpose of developing a “national energy policy

designed to help the private sector, and government at all levels,

promote dependable, affordable, and environmentally sound

production and distribution of energy for the future.” Mem.

Establishing the NEPDG, Jan. 29, 2001. The plaintiffs sought

a declaration that the agencies’ failure to disclose the requested

documents was unlawful and an order requiring them to make

the documents available.

In its cross-motion for summary judgment, the Government

argued the documents in question were protected from

disclosure under Exemption 5 because they reflected the

deliberations of the NEPDG. The district court rejected that

argument and ordered the Government to release the requested

documents by June 1, 2004 “unless the agenc[ies] can

demonstrate how each communication is both deliberative and

predecisional of an agency’s own decision.” Judicial Watch,

Inc. v. Department of Energy, 310 F. Supp. 2d 271, 316 (2004).

The court also ruled that the DOE and the DOI had failed

adequately to search their records because they did not consider

in their search any documents created by or maintained by

agency employees while detailed to the NEPDG (or, with

respect to one employee, while he was serving as his agency’s

representative on another energy-related task force). Id. at

298–302. The court directed each Department to conduct a new

search and to disclose any non-exempt documents responsive to

the plaintiffs’ requests. Id. at 331. Upon the motion of the

Government, the district court later stayed its order pending the

outcome of this appeal.
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II. Analysis

We review the district court’s decision on summary

judgment de novo, which in a FOIA case means we must

“ascertain whether the agency has sustained its burden of

demonstrating that the documents requested are not ‘agency

records’ or are exempt from disclosure.” Assassination Archives

and Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). In

this case, the specific questions to be resolved are (1) whether

Exemption 5 permits the defendant agencies to withhold

documents pertaining not to their own deliberations but to those

of the NEPDG, and (2) whether the records of agency

employees who were detailed to the NEPDG are “agency

records” subject to disclosure under the FOIA. Before turning

to these issues, however, the court must address Judicial

Watch’s motion to dismiss this appeal on the ground that the

district court has not issued a final order. See 28 U.S.C. § 1291.

Judicial Watch contends the order of the district court is not

final because it does not actually require the agencies to disclose

any records; they are required only to conduct a fresh review of

their records and to raise such other objections, if any, as they

may then have. As the Government reads the order, on the other

hand, the agencies are required immediately (upon dissolution

of the stay pending appeal) to disclose certain documents with

respect to which the Government has no argument against

disclosure apart from the Exemption 5 argument already rejected

by the district court; therefore, the order is reviewable either as

a final order, pursuant to 28 U.S.C. § 1291, or as an

interlocutory injunctive order, pursuant 28 U.S.C. § 1292(a)(1).

In our view the order of the district court is not “final”

because it does not fully resolve all the issues before that court,

see Southeast Fed. Power Customers v. Harvey, 400 F.3d 1, 4

(D.C. Cir. 2005), but it is an appealable interlocutory order
5

insofar as it requires the disclosure of documents for which the

agencies claim no basis for non-disclosure beyond the argument

already rejected by the district court. That the agencies also

must conduct a new search does not mean they may defer

disclosure of the documents they have already located. The

order is therefore injunctive in nature and, as such, appealable

under § 1292(a)(1). See Gulf Oil Co. v. Dep’t of Energy, 663

F.2d 296, 306 n. 70 (D.C. Cir. 1981) (“Mandatory orders

affecting preliminary agency action have generally been held to

be appealable as injunctions under § 1292(a)(1)”); see also

Miller v. Bell, 661 F.2d 623, 625 (7th Cir. 1981) (“A disclosure

order in a FOIA suit is injunctive in nature”). We therefore

deny the motion to dismiss this appeal and proceed to the merits.

A. Exemption 5 and the Deliberative Process Privilege

The FOIA requires an “agency” to make “agency records”

available upon request unless it can show they come within one

of the nine exemptions in the Act, see 5 U.S.C. § 552(a)(3), (b);

Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 388 (D.C. Cir.

1996), which, in furtherance of the Congress’s goal of open

government, “have been consistently given a narrow compass.”

Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989). The

only Exemption at issue here is No. 5, which authorizes the nondisclosure of “inter-agency or intra-agency memorandums or

letters which would not be available by law to a party other than

another agency in litigation with the agency.” That means the

Government may withhold a document if: (1) “its source [is] a

Government agency,” and (2) “it [falls] within the ambit of a

privilege against discovery under judicial standards that would

govern litigation against the agency that holds it.” Dep’t of the

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,

8 (2001).
6

One of the privileges incorporated into Exemption 5 is the

common-law “privilege regarding the government’s deliberative

process.” Bureau of Nat’l Affairs v. Dep’t of Justice, 742 F.2d

1484, 1496 (D.C. Cir. 1984). Its inclusion in the statute

“reflect[s] the legislative judgment that the quality of

administrative decision-making would be seriously undermined

if agencies were forced to ‘operate in a fishbowl’ because the

full and frank exchange of ideas on legal or policy matters

would be impossible.” Tax Analysts v. IRS, 117 F.3d 607, 617

(D.C. Cir. 1997). To come within the purpose of the privilege,

therefore, a document must be both “pre-decisional” and

“deliberative,” see In re Sealed Case, 121 F.3d 729, 737 (D.C.

Cir. 1997); and, by the terms of Exemption 5, it must also be an

“inter-agency” or an “intra-agency” record. See Klamath Water

Users, 532 U.S. at 9.

In this case the Government argues Exemption 5 and the

deliberative process privilege authorize the agencies to withhold

documents that would reveal the decision-making processes of

the NEPDG. The district court rejected that argument,

reasoning that because the NEPDG is not itself an “agency”

within the meaning of the FOIA, see 5 U.S.C. § 552(f)(1),

Exemption 5 does not protect its deliberations from disclosure.

In the district court’s view, then, the privilege would apply if the

NEPDG were informing the agencies’ decision-making

processes, but not if the agencies were informing the decisionmaking processes of the NEPDG, as was in fact the case. See

310 F. Supp. 2d at 314–16.

We agree the NEPDG is not itself an “agency” subject to

the FOIA because its sole function is to advise and assist the

President. See Meyer v. Bush, 981 F.2d 1288, 1292 (D.C. Cir.

1993). The district court erred, however, in thinking that

Exemption 5 therefore does not protect the deliberations of the

NEPDG. Neither Exemption 5 nor the cases interpreting it
7

distinguish between the decision-making activities of an

“agency” subject to the FOIA and those of the President and his

staff, who are not subject to the FOIA. On the contrary, both the

Supreme Court and this circuit have expressly refused to draw

that distinction.

InEPA v. Mink, 410 U.S. 73, 85 (1973), the Supreme Court

deemed it “beyond question” that documents prepared by

agency officials to advise the President were within the coverage

of Exemption 5 because they were “‘intra-agency’ or ‘interagency’ memoranda or ‘letters’ that were used in the

decisionmaking processes of the Executive Branch.” Similarly,

in Soucie v. David, 448 F.2d 1067, 1078 (1971), we held that

Exemption 5 shields “the decisional processes of the President

[and] other executive officers with policy-making functions.”

And in Bureau of National Affairs, 742 F.2d at 1496–97, we

held the Office of Management and Budget may properly

withhold as “predecisional, deliberative interagency memoranda

exempt from disclosure under 5 U.S.C. § 552(b)(5)” the EPA’s

budget recommendations, which the EPA submitted to the OMB

and which the OMB then used to make its own

recommendations to the President, because “the President, not

the EPA, makes the final decision concerning what budget

requests should be submitted to the Congress.” 

The Executive Branch officials who play important roles in

the formulation of policy are not necessarily employed by an

“agency” within the meaning of the FOIA; an employee in a unit

of the Executive Office of the President engaged solely in

advising the President is an obvious example. See, e.g.,

Kissinger v. Reporters Comm. for Freedom of the Press, 445

U.S. 136, 157 (1980) (“the President’s immediate staff or units

in the Executive Office whose sole function is to advise and

assist the President are not included within the term ‘agency’

under the FOIA”); Rushforth v. Council of Economic Advisors,
8

762 F.2d 1038, 1043 (D.C. Cir. 1985) (CEA not an “agency”

under FOIA); Meyer v. Bush, 981 F.2d at 1289 (Task Force on

Regulatory Relief, headed by then-Vice President Bush and

composed of cabinet members, not an “agency” for purposes of

FOIA). We are aware of no reason to believe — indeed, we

think it inconceivable — the Congress intended Exemption 5 to

protect the decision-making processes of the Executive Branch

when the decision is to be made by “agency” officials subject to

oversight by the President and not when the decision is to be

made by the President himself and those same agency officials

are acting in aid of his decision-making processes. As we

explained almost 25 years ago in Sierra Club v. Costle, 657 F.2d

298 (1981), the unitary structure of the Executive Branch is one

of its essential features:

The court recognizes the basic need of the President and his

White House staff to monitor the consistency of executive

agency regulations with Administration policy. He and his

White House advisors surely must be briefed fully and

frequently about rules in the making, and their contributions

to policymaking considered. The executive power under

our Constitution, after all, is not shared—it rests exclusively

with the President. The idea of a “plural executive,” or a

President with a council of state, was considered and

rejected by the Constitutional Convention. Instead the

Founders chose to risk the potential for tyranny inherent in

placing power in one person, in order to gain the advantages

of accountability fixed on a single source.

Id. at 405. See Christopher S. Yoo, Steven G. Calabresi, &

Anthony J. Colangelo, The Unitary Executive in the Modern

Era, 1945–2004, 90 IOWA L. REV. 601, 730 (2005) (concluding

“every President [during period studied] defended the

unitariness of the executive branch”).
9

Our interpretation of Exemption 5 is not inconsistent with

its textual limitation to “intra-agency” or “inter-agency”

communications, as the plaintiffs suggest. Rather, it follows

from the principle, well established in this circuit, that a

document need not be created by an agency or remain in the

possession of the agency in order to qualify as “intra-agency.”

Consider, for instance, Ryan v. Department of Justice, 617 F.2d

781 (1980):

When an agency record is submitted by outside consultants

as part of the deliberative process, and it was solicited by

the agency, we find it entirely reasonable to deem the

resulting document to be an ‘intra-agency’ memorandum

for purposes of determining the applicability of Exemption

5.

Id. at 790. Not to treat in the same way documents shared with

or received from the NEPDG, a body established by the

President solely to advise him, and composed entirely of federal

officials, see In re Cheney, ___ F.3d ___, No. 02-5354, 2005

WL 1083346 (D.C. Cir. May 10, 2005), would be anomalous

indeed.

That the President, rather than an agency, initiated the

policy development process is of no moment; what matters is

whether a document will expose the pre-decisional and

deliberative processes of the Executive Branch. The district

court, which did not evaluate the disputed documents in those

terms, should do so upon remand, bearing in mind that the

deliberative process privilege does not protect purely factual

material contained in privileged documents if the disclosure of

such information would not reveal the nature of the

deliberations. See EPA v. Mink, 410 U.S. at 87–88.
10

*

If they were DOE employees, then the documents would have

been created in the legitimate conduct of their official duties at the

DOE, and it would be immaterial that the documents were and are

located at the Office of the Vice President and were never integrated

into the DOE’s records system. See Dep’t of Justice v. Tax Analysts,

492 U.S. at 145.

B. “Agency Records”

The FOIA requires disclosure only of “agency records,”

which are documents created or obtained by an agency and

under the agency’s control at the time the FOIA request is made.

See Burka v. Dep’t of Health& Human Servs., 87 F.3d 508, 515

(D.C. Cir. 1996). In this case the district court held that,

because the DOE employees detailed to the NEPDG remained

on the payroll of the DOE, the records they created or obtained

while on detail were “agency records” of the DOE and hence

subject to disclosure; the court therefore ordered the DOE to

search the documents of the former detailees and to disclose any

non-exempt portions thereof. See Judicial Watch, 310 F. Supp.

2d at 299.

Even if the detailees remained employees of the DOE, as

the district court concluded, our holding in Part II.A, above,

regarding Exemption 5 would still permit the DOE to withhold

documents the detailees created or obtained insofar as their

disclosure would reveal the deliberative processes of the

NEPDG. With respect to other documents the detailees created

or obtained while on detail, the question remains whether the

detailees were then DOE employees. The district court assumed

— and the Government does not disagree — that the DOE’s

duty to examine the records of the detailees and to disclose any

non-exempt portions thereof turns upon whether the detailees

were employees of the DOE or of the NEPDG when they

created or obtained the documents.*
11

The Government argues that the district court, in finding

that the detailees were employees of the DOE, relied too heavily

upon the detailees having been paid out of funds appropriated

for the use of the DOE. We agree. Although the district court

acknowledged that, during their detail, the employees worked

exclusively on NEPDG matters, were supervised by the Office

of the Vice President, and did not occupy an office at the DOE,

it appeared not to consider those factors in deciding whether the

detailees remained DOE employees; instead the district court

appeared to rely solely upon the agency having paid their

salaries. 310 F. Supp. 2d at 298–99. Cf. C.C. Eastern, Inc. v.

NLRB, 60 F.3d 855, 858–59 (D.C. Cir. 1995) (question whether

worker is employee covered by the National Labor Relations

Act or independent contractor outside the jurisdiction of the

NLRB is resolved by reference to common law of agency, which

in turn “requires an evaluation of all the circumstances

surrounding the relationship between the company and the

worker”); Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C. Cir.

1979) (holding “no one factor is determinative” of whether

individual is employee or independent contractor for purposes

of Title VII).

Agencies routinely detail employees to the White House for

a limited time or a specific task, and it is not for a court to

burden that practice when not under statutory compulsion. Cf.

Johnson v. Executive Office for U.S. Att’ys, 310 F.3d 771, 776

(D.C. Cir. 2002) (“FOIA ... is hardly an area in which the court

should attempt to micro manage the executive branch”); Sierra

Club v. Costle, 657 F.2d at 405; see also Cheney v. U.S. Dist.

Court, ___ U.S. ___, 124 S. Ct. 2576, 2581 (2004) (“special

considerations control when the Executive Branch’s interest in

maintaining the autonomy of its office and safeguarding the

confidentiality of its communications are implicated”). Seeing

that the records the plaintiffs seek would not be “agency

records” subject to the FOIA if the NEPDG had temporarily
12

hired the employees away from the DOE, we see no reason the

NEPDG should be made effectively subject to the FOIA because

it borrowed, rather than hired, some of its staff. Nor is there

evidence — nor indeed any claim by the plaintiffs — the DOE

used the detail procedure in order to circumvent the disclosure

requirements of the FOIA.

We reject the plaintiffs’ suggestion that there is something

to be gleaned from the statutory provision allocating the

responsibility for paying the salaries of the detailees. Section

112, 3 U.S.C. requires the office to which an employee has been

detailed to reimburse the detailing office for the detailees’ pay

insofar as the detail exceeds 180 days in a fiscal year. The

plaintiffs point out that some of the detailees from the DOE

worked for the NEPDG but were paid by the DOE for more than

180 days in FY 2001, from which they would have us infer the

detailees remained DOE employees. In our view, however, §

112 does not bear at all upon the question before us. At most

the plaintiffs’ argument suggests the DOE should have stopped

paying the detailees’ salaries, but that does not cast doubt upon

our conclusion that, given the surrounding circumstances, the

employees were not “agency employees” during the time they

worked for the NEPDG.

Because the circumstances amply support the DOE’s

assertion that the detailees were as a practical matter employees

of the NEPDG, and not of the agency, it follows that the records

those employees created or obtained while on detail were those

of the NEPDG, not those of the DOE, and hence not “agency

records” within the meaning of the FOIA. The district court

therefore erred in ordering the Government to search the records

of the detailees.

The records of Ronald Montagna, a DOI employee who

served as his agency’s representative on the White House Task
13

Force on Energy Project Streamlining, present a different issue.

The Streamlining Task Force was, according to an affidavit the

Government submitted in this case, established pursuant to an

executive order “to work with and monitor federal agencies’

efforts to expedite their review of permits or similar actions, as

necessary, to accelerate the completion of energy-related

projects, while maintaining safety, public health, and

environmental protections.”

The Government concedes that “at all times during his ...

assignment to the [Streamlining Task Force], each agency

representative remain[ed] an employee of his ... agency and

remain[ed] subject to the authorities and requirements” of that

agency. The Government argues, nonetheless, that documents

created or obtained by Montagna are not records of the DOI

because they are not in its possession but, rather, in the

possession of the Council on Environmental Quality. As the

district court correctly observed, however, possession is not the

proper test of whether a record is within an agency’s control.

See 310 F. Supp. 2d at 302 (quoting Ryan v. Dep’t of Justice,

617 F.2d at 785). It is undisputed that Montagna created or

obtained the documents “in the legitimate conduct of [his]

official duties” at the DOI, see Dep’t of Justice v. Tax Analysts,

492 U.S. at 145, and the Government does not suggest the DOI

lacks either authority over, or the ability to retrieve, the

documents. They are therefore within the DOI’s control for

purposes of the FOIA, and we affirm the order of the district

court insofar as it directed the DOI to examine and to disclose

the non-exempt portions of Montagna’s records.

III. Conclusion

We hold the defendant agencies may properly withhold

from disclosure, pursuant to Exemption 5, documents that would

reveal the deliberative processes of the NEPDG; and the DOE
14

need not search the records of DOE employees who were

detailed to the NEPDG, as those records are not “agency

records” within the meaning of the FOIA. The district court

correctly determined the DOI must disclose the non-exempt

documents of Ronald Montagna. The order of the district court

granting partial summary judgment to the plaintiffs is therefore

affirmed in part and reversed in part and the case is remanded to

the district court for further proceedings consistent with this

opinion.

So ordered.