# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 19, 2005 Decided June 17, 2005

No. 04-5204

J UDICIAL W ATCH

, I NC

., A PPELLEE

v.

D EPARTMENT OF E

NERGY

, ET AL

., A PPELLANTS

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 P eter D.

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

Attorney, Gregory G. Katsas

, Deputy Assis tant 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: G

INSBURG

, Chief Judge

, and T ATEL and G

ARLAND

, Circuit Judges

.

Opinion for the Court filed by Chief Judge G INSBURG

.

G INSBURG

, Chief Jud

ge : Eight federal agencies appeal

from an order of the distr i ct court requiring them to search their

records for, and to give the plaintiffs, cert ain 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-decisio nal deliberations of the NEPDG. The

district court also ordered e ach agency to search for and to

disclose certain records created or main tained 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 purpose s of the FOIA, the agencies lawfully

withheld, pursuant to Ex

emption 5, documents bearing upon the

deliberativ e processes of the NEPDG. We also hold that the

rec ords 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, s ued the United States Departments of

Agriculture, Commerce, Energy, the Interio r

, Transportation,3

and the Treasury, the Environm e ntal Protection Agency, the

Federal Emergency Manag e ment Agency, and the Office of

M anagement and Budget (since dismissed), alleging the

defendant agencies violated the disclosure requirements of the

FOIA b y withholding agency records related to the NEPDG,

which President George W. Bush had established earlier that

year fo r 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.

Establishi ng the NEPDG, Jan. 29, 2001. T he plaintiffs sought

a declaration that the agencies’ failure to d isclose the requested

documents was unlaw

ful and an order requiring them to make

the documents available.

In its cross-motion for summary judgment , the Government

arg ued the documents in question were protected from

disclosure under Exemption 5 because they reflected the

deliberations of the NEPDG. The district court rejected that

argume nt and ordered the Government to release the requested

documents by June 1, 200 4 “unless the agenc[ies] can

demonstrate how each communication is both deliberative and

p redecisional of an a gency’s own decision.” J udicial 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. I d

. at 331. Upon the motion of the

Gove rnment, the district court later stayed its order pending the

outcome of this appeal.4

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

demons trating 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 cas e, the specific questions to be resolved are (1) whether

Exemptio n 5 permits the defendant agencies to withhold

documents pertaining not to their own delibe rations but to those

of the NEPDG, and (2) wheth e r the records of agency

employees who were detailed to th e NEPDG are “agency

r ecords” subject to disclosure under the FOIA. Before turning

to these i

ssues, 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. S ee 28 U.S.C. § 1291.

Judicial Watch contends the order of the district court is not

final because it does not actually require the ag encies to disclose

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

their records and to raise such other objec tions, 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 sta y pending appeal) to disclose certain documents with

respect to which

the Government has no argument against

disclosure apart from the Exempti on 5 argument already rejected

by the district court; therefore, the order is reviewable eith er as

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

interlocut ory 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 order5

insofar as it requires the disclosure of documents f or which the

agencies claim no bas is for non-disclosure beyond the argument

already rejected by the district court. That the agencies also

must c onduct a new search does not mean they may defer

disclosure of the documents they have already located. The

order is therefo re injunctive in nature and, as such, appealable

under § 1292(a)(1). S ee Gulf Oil Co. v. Dep’t of Energy

, 663

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

affecting prelimi

nary agency action have generally been held to

be appealabl

e 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 injun ctive in nature”). We therefore

deny th e 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”

avail able 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

, 7 3 F.3d 386, 388 (D.C. Cir.

1996), which, in furtherance of the C ongress’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 hereis No. 5, which authorizes the nondisclosu r e of “inter-agency or intra-agency memorandums or

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

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

Government may wit

hhold a document if: (1) “its source [is] a

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

privilege against discove ry under judicial standards that would

govern litigation against the agency that holds it.” D ep’t of t h e

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

8 (2001).6

One of the privileges incorpor ated into Exemption 5 is the

common-law “privilege regard ing the government’s deliberative

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

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

“refle ct[s] the legislative judgment that the quality of

administrative decision-making would be seriousl y undermined

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

full and frank exchange of ideas o n legal or policy matters

would be impossible.” T

ax Analysts v. IRS

, 117 F.3d 607, 617

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

therefore, a do cument 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 a rgues 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,

r easoning 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 p r otect its deliberations from disclosure.

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

NEPDG were informing the age ncies’ decision-making

processes, but not if the agencies were informing the decisionmaking processes of the NEPDG, as was in fact the case. S ee 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 prote ct the deliberations of the

NEPDG. Neither Exemption 5 nor the cases interpreting it7

distinguish between the decision-making activities of an

“agency” subje ct 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.

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

deemed it “beyond questio n” that documents prepared by

agency officials to advise the President were within the coverage

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

decisionmaking proc esses 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 Pre sident

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

And in Bureau of National Affairs

, 742 F.2d at 1496–97, we

held the Office of Management and Budget m ay properly

withhold as “predecisional, deliberative interagency memoranda

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

budget recommendations, which th e EPA submitted to the OMB

and which the OMB then used to make its own

recommendations to the Preside nt, because “the President, not

t he 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

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

of the Executive Office

of the President engaged solely in

a dvising the President is a n obvious example. S ee, e.g.

, Ki ssinger v. Reporters Comm. for Freedom of the Press , 445

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

in th e Executive Office whose sole function is to advise and

assist the President are not included within the ter m ‘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 in tended Exemption 5 to

p rotect the decision-making processes of the Executive Bran c h

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 o fficials

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 u

nitary 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

Wh i te House advisors surely must be briefed fully and

frequently about rules in the making, and their contributions

to policymaking conside

red. The executive power under

our Constitution, after all, is n o t shared—it rests exclusively

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

President with a council of state, was co nsidered and

rejected by the Constitutio nal Convention. Instead the

Founders chose to risk th e 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. S ee Christoph er S. Yoo, Steven G. Calabresi, &

Anthony J. Colangel

o, The Unitary Executive in the Modern

Era, 1945–2004

, 90 I OWA L. R EV

. 601, 730 (2005) (concluding

“every President [ during period studied] defended the

unitariness of the executive branch”).9

Our interpretation of Exemptio n 5 is not inconsistent with

its textual limitation to “intra-agency” or “inte r-agency”

communications, as the plaintiffs sugge st. Rather, it follows

from the pri

nciple, well established in this circuit, that a

document need not be created by an agency or r emain 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 submitt e d by outside consultants

as part of the deliberative process, and it was s olicited by

the agency, we find it entirely reasonable to deem the

r esulting document to be an ‘intra-agency’ memoran dum

for purpo ses of determining the applicability of Exemption

5.

Id

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

or rece ived from the NEPDG, a body established by the

P resident solely to advise him, and composed entirely of federal

offici als, 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-decisiona l and

deliberative processes of the Executive Branch. The district

court, which did n

ot 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 integ rated

into the DOE’s records system. S ee 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 a n 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,

becau se 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. S ee 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 s till permit the DOE to withhold

documents the detailees created or obtained inso far as their

disclosure would reveal the deliberative processes of the

NEPDG. With respect to other documents the detailees created

or obtained while on detail, t he question remains whether the

detailees were then DOE employees. The district court assumed

— and the Government does not disag ree — that the DOE’s

duty to examine the records of the detailees a nd to disclose any

non-exempt portions thereof turns upon whether the detailees

w ere employees of the DOE or of the NEPDG when t hey

created or obtained the documents. *11

The Government argues that the district court, in finding

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

upon the detailees having been paid out of fun ds appropriated

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

acknowledged that, during thei r detail, the employees worked

exclusively on NEPDG matters, were supervised by the Off ice

of the Vice President, and did not occupy a n 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. C f. 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 o r independent contractor outside the jurisdiction of the

NLRB is resolved by reference to c o mmon law of agency, which

in turn “requires an evaluation of all t h e circumstances

sur rounding the relationship between the company and the

worker”); Spiride s 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 p urposes

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 tha t practice when not under statutory compulsion. C f.

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 interes t in

main taining the autonomy of its office and safeguarding the

confidentiality of its communications are implicated”). Seeing

that the records t

he plaintiffs seek would not be “agency

records” subject to the FOIA if the NEPDG had temporarily12

hired the employees awa y 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 indee d 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 fo r 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 det ailees’ pay

insofar as the detail exceeds 180 days in a fis c al 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 i n fer the

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

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

the plaintiffs’ argument suggests th e DOE should have stopped

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

our conclus ion that, given the surrounding circumstances, the

employees w e re not “agency employees” during the time they

worked for the NEPDG.

B ecause the circumstances amply support the D OE’s

assertion that the detailees were as a practical ma tter employees

of the NEPDG, and n

ot of the agency, it follows that the records

tho s e employees created or obtained while on detail were those

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

records” w ithin 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 re presentative on the White House Task13

Force on Energy Project Streamlining, present a diff erent 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 s imilar actions, as

necessary, to a ccelerate the completion of energy-related

project s, while maintaining safety, public health, and

environmental protections.”

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

assi gnment to the [Streamlining Task Force], each agency

representative remain[ed] an employee of his

... agency and

remain[ed] subject to the a uthorities 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 Counc il 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 J ustice

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

obtained th

e 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 ab i lity 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 pr operly withhold

from disclosure, pursuant to Exemption 5, documents that would

reveal the deliberative processes of the NEPDG; and the DOE14

need not sea

rch 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 di sclose the non-exempt

documents of R

onald Montagna. The order of the district court

granting partial

summary judgment to the plaintiffs is therefore

affirmed in part and revers ed in part and the case is remanded to

the district court for further proceedings consistent with this

opinion.

So ordered.