United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 29, 2023 Decided May 17, 2024

No. 22-5281

AMERICAN OVERSIGHT,

APPELLANT

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN 

SERVICES AND OFFICE OF MANAGEMENT AND BUDGET,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-00827)

Jessica Anne Morton argued the cause for appellant. With 

her on the briefs were Katherine M. Anthony and Mehreen A. 

Rasheed.

Nikhel S. Sus was on the brief for amicus curiae Citizens 

for Responsibility and Ethics in Washington in support of 

appellant.

Bruce D. Brown, Katie Townsend, and Adam A. Marshall

were on the brief for amicus curiae The Reporters Committee 

for Freedom of the Press in support of appellant.
2

Benjamin M. Shultz, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the brief were 

Brian M. Boynton, Principal Deputy Assistant Attorney 

General, and Mark B. Stern, Attorney.

Before: PILLARD, WILKINS, and GARCIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARCIA.

Opinion concurring in part and dissenting in part filed by 

Circuit Judge WILKINS.

GARCIA, Circuit Judge: The Freedom of Information Act 

(“FOIA”) requires federal agencies to make their records 

available to the public, subject to nine exemptions for specific 

categories of material. Exemption 5 protects “inter-agency or 

intra-agency memorandums or letters that would not be 

available by law to a party other than an agency in litigation 

with the agency.” 5 U.S.C. § 552(b)(5). 

This case concerns the meaning of “intra-agency.” Under 

the “consultant corollary” to Exemption 5, first endorsed by 

this court in 1971, we have held that the term encompasses 

nearly all documents used by an agency in its deliberative 

process, even if the author or recipient is not an employee of 

that same agency. In Department of Interior v. Klamath Water 

Users Protective Association, 532 U.S. 1 (2001), the Supreme 

Court expressed skepticism about the breadth of that doctrine. 

The Court emphasized that the term intra-agency must be given 

“independent vitality” and suggested that Exemption 5 might 

extend at most to documents from outsiders that are similarly 

situated to agency employees in that they have no independent 

stake in the matter under discussion. See id. at 11–12. 
3

Since Klamath, we have not had to decide whether 

agencies may invoke Exemption 5 to withhold agency records 

generated by a government consultant with its own stake in the 

outcome of the agency’s decision-making process. Presented

with the question, we conclude they may not. 

In this case, two Executive Branch agencies invoked 

Exemption 5 to withhold communications with members of 

Congress and their staffs during negotiations over potential 

healthcare reform legislation. Because the record shows 

Congress had an independent stake in that subject and did not 

provide disinterested advice as an agency employee would, we 

conclude that Exemption 5 does not apply to the records at 

issue and reverse the district court.

I

In early 2017, House Republican leaders sought to repeal 

the Affordable Care Act. While the effort was gaining steam,

American Oversight filed two identical FOIA requests with the 

Department of Health and Human Services (“HHS”) and the 

Office of Management and Budget (“OMB”). The requests 

sought communications “relating to healthcare reform” 

between each agency and Congress. J.A. 32, 40. The agencies 

did not timely respond to the requests, so American Oversight 

filed suit in the district court, which soon ordered the agencies 

to make rolling productions.

The agencies made those productions for several months

before reaching an impasse with American Oversight. 

Invoking Exemption 5, HHS and OMB refused to disclose 

certain communications between the agencies and Congress as 

“intra-agency memorandums or letters.” 5 U.S.C. § 552(b)(5).

The parties filed competing motions for summary 

judgment on that issue. The agencies argued that Exemption 5 

applied because the communications were between Trump 
4

Administration officials and Republican members of Congress, 

and their staffs, who shared the “goal of repealing and 

replacing” the Affordable Care Act. See Memorandum of 

Points and Authorities in Support of Defendants’ Motion for 

Summary Judgment at 20, Am. Oversight, Inc. v. U.S. Dep’t of 

Health & Hum. Servs., No. 17 Civ. 827 (EGS) (DAR), 2022 

WL 1719001 (D.D.C. May 27, 2022), Dkt. 25-1.

American Oversight acknowledged that, under our 

consultant corollary case law, Exemption 5’s term “intraagency” can be read to include some scenarios where an 

outside consultant assists an agency in carrying out the 

agency’s functions. But here, it argued, the consultant 

corollary could not apply. According to American Oversight, 

Congress and its staffers were not functioning in a consultative 

capacity—they were negotiating with a co-equal branch of 

government to pass a new healthcare law, each side bringing 

its own interests to bear. In American Oversight’s view, that

certain members of Congress and the agencies shared a 

common goal to pass healthcare reform could not transform the 

cross-branch communications into “intra-agency” ones for 

purposes of Exemption 5.

The district court sided with the agencies and found nearly 

all the withholdings proper. The district court observed that in

Klamath’s wake, district courts in this Circuit have taken 

different approaches to the consultant corollary’s scope. Some 

cases have required that outside consultants lack an 

“independent interest” in the subject that they discuss with the 

agency. See Am. Oversight, Inc., 2022 WL 1719001, at *13 

(citing Am. Oversight v. U.S. Dep’t of Health & Hum. Servs., 

380 F. Supp. 3d 45, 54–55 (D.D.C. 2019)). Others have

protected communications with outside consultants having 

such an interest, so long as the consultant and agency share 

overriding common goals. Id. (citing Jud. Watch, Inc. v. U.S. 
5

Dep’t of State, 306 F. Supp. 3d 97, 111 (D.D.C. 2018)). The 

district court explained that depending on which line of cases 

it followed, the outcome here would be different. Under the 

first line of cases, American Oversight would win. See id. But 

under the second, the agencies would win. See id. The district 

court chose the latter course, and therefore held that the 

communications were protected from disclosure under 

Exemption 5. See id. at *12–15. 

Separate from the Exemption 5 issue, American Oversight 

also challenged the adequacy of HHS’s (but not OMB’s) search 

for responsive records, arguing that HHS improperly omitted 

certain terms from its search. Each party moved for summary 

judgment, and the district court ruled for HHS. Id. at *11–12.

American Oversight appeals both rulings. Our review is 

de novo. Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 

350, 361 (D.C. Cir. 2021).

II

Congress enacted FOIA in 1966 to give the public “access 

to official information long shielded unnecessarily from public 

view.” Env’t Prot. Agency v. Mink, 410 U.S. 73, 80 (1973). 

The Act requires government agencies to make information 

available upon request unless the information is protected by 

one of nine statutory exemptions. 5 U.S.C. § 552(b). We 

recognize FOIA’s “goal of broad disclosure” and give the 

exemptions “a narrow compass.” U.S. Dep’t of Just. v. Tax 

Analysts, 492 U.S. 136, 151 (1989); see FBI v. Abramson, 456 

U.S. 615, 630 (1982).

The agencies here have invoked Exemption 5. 5 U.S.C. 

§ 552(b)(5). Exemption 5 protects certain kinds of agency 

records under two conditions. It applies to (1) “inter-agency or 

intra-agency memorandums or letters” that (2) “would not be 

available by law to a party other than an agency in litigation 
6

with the agency.” Id. On appeal, American Oversight does not 

dispute the government’s claim that the second condition is 

satisfied because the records at issue are subject to the 

deliberative-process privilege, which protects certain 

documents used in government decision-making processes. 

See Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C. 

Cir. 1982). 

The parties’ disagreement centers instead on the first 

condition, which requires the records to be either “interagency” or “intra-agency.” The parties agree that the records 

are indisputably not “inter-agency.” Congress is explicitly 

excluded from the statute’s definition of “agency.” 5 U.S.C. 

§ 551(1)(a). The question, then, is whether the records can 

qualify as “intra-agency.” 

One might think that the statutory text yields a 

straightforward “no.” The communications and documents, 

after all, were not authored by and exchanged between a single 

agency’s employees. But under the “consultant corollary,” our 

court and others have long treated Exemption 5’s coverage of 

“intra-agency” records as extending beyond just that category. 

We first endorsed the corollary in Soucie v. David, 448 

F.2d 1067 (D.C. Cir. 1971), to account for the reality that 

agencies often rely on outside experts for advice in their 

deliberative processes. We explained that “[t]he Government 

may have a special need for the opinions and recommendations 

of temporary consultants, and those individuals should be able 

to give their judgments freely without fear of publicity.” Id. at 

1078 n.44. An outsider’s report can accordingly “be treated as 

an intra-agency memorandum of the agency which solicited it” 

for purposes of Exemption 5. Id. Other circuits followed suit. 

See Lead Indus. Ass’n, Inc. v. OSHA, 610 F.2d 70, 83 (2d Cir. 

1979) (“[W]e have nothing that can usefully be added to Chief 
7

Judge Bazelon’s statement in Soucie . . . .”); Hoover v. Dep’t 

of the Interior, 611 F.2d 1132, 1138 (5th Cir. 1980). 

Over the years, we applied the consultant corollary to 

protect records an agency exchanged with non-agency 

outsiders. Although our cases often cited additional 

considerations, the dominant one guiding the doctrine’s

application was whether the record was “created for the 

purpose of aiding the agency’s deliberative process” and in fact 

used in that process. Dow Jones & Co. v. U.S. Dep’t of Just., 

917 F.2d 571, 575 (D.C. Cir. 1990) (emphasis omitted). 

Whether “the author [was] a regular agency employee or a 

temporary consultant” was “irrelevant”; our focus instead was 

on “the role, if any, that the document play[ed] in the process 

of agency deliberations.” CNA Fin. Corp. v. Donovan, 830 

F.2d 1132, 1161 (D.C. Cir. 1987).

The Supreme Court confronted the consultant corollary for 

the first and only time in its 2001 Klamath decision. Klamath

addressed Exemption 5’s applicability to documents 

exchanged between certain Indian Tribes and the Department 

of the Interior. The documents concerned water-allocation 

proceedings in which the Tribes sought to maximize their share 

of available water. See 532 U.S. at 5–6. Six of the seven 

documents were “prepared by the Klamath Tribe or its 

representative”; one was created by a Bureau of Indian Affairs 

official and sent “to lawyers for the Klamath and Yurok 

Tribes.” Id. at 6.

Relying on the consultant corollary, the government 

argued that the documents were protected from disclosure 

because the Interior Department used the documents in its 

decision-making process, and everyone involved expected the 

documents to be kept confidential. See id. at 11. The Supreme 

Court did not doubt the government’s claim that 

“confidentiality in communications with tribes is conducive to 
8

a proper discharge” of the Interior Department’s obligations as 

trustee for the Tribes. Id. Nor did it dispute that the “candor 

of tribal communications with the Bureau would be eroded” if 

the government’s argument were rejected. Id.

The Court nevertheless rejected the government’s 

position. “To qualify” under Exemption 5, the Court 

recounted, a record “must . . . satisfy two conditions,” id. at 8: 

It must be protected by a litigation privilege, and it “must be 

‘inter-agency or intra-agency,’” id. at 9 (quoting 5 U.S.C. 

§ 552(b)(5)). The Court explained that finding both of 

Exemption 5’s requirements satisfied whenever a record is 

used in an agency’s deliberative process—a precondition for 

the deliberative-process privilege to apply—would improperly 

“ignore[]” the distinct statutory requirement “that the 

document be ‘intra-agency or inter-agency.’” Id. at 12. That 

requirement must be given “independent vitality,” not treated 

as “a purely conclusory term, just a label to be placed on any 

document the Government would find it valuable to keep 

confidential.” Id.

The Court assumed without deciding that some outside 

consultants could qualify as “intra-agency.” Id. It observed, 

however, that in the “typical case[]” in which lower courts 

applied the consultant corollary, the “fact about the consultant 

that is constant . . . is that the consultant does not represent an 

interest of its own, or the interest of any other client, when it 

advises the agency that hires it.” Id. at 10–11. That is, the 

“consultants whose communications have typically been held 

exempt have not been communicating with the Government in 

their own interest or on behalf of any person or group whose 

interests might be affected by the Government action addressed 

by the consultant.” Id. at 12. That does not mean that the 

“outside consultant must be devoid of a definite point of view 

when the agency contracts for its services.” Id. at 10. The key 
9

instead is the outsider’s obligations—its “only obligations” 

must be “to truth and its sense of what good judgment calls 

for.” Id. at 11. When that is true, the Court concluded, the 

consultant “functions just as an employee would be expected 

to,” id., and the “consultants may be enough like the agency’s 

own personnel to justify calling their communications ‘intraagency,’” id. at 12.1

Turning to the facts of the case, the Court held that the 

Tribes’ communications with the Interior Department could 

not qualify as intra-agency. Unlike the disinterested agency 

consultants typically found within the scope of Exemption 5, 

the Tribes “necessarily communicate[d] with the Bureau with 

their own, albeit entirely legitimate, interests in mind.” Id. The 

Court explained that “this fact alone distinguishes tribal 

communications from” the typical consultant corollary case. 

Id. The Court then observed that “the distinction is even 

sharper” because the Tribes were not only self-interested but 

were “self-advocates at the expense of others seeking benefits 

inadequate to satisfy everyone.” Id. The Tribes, that is, were 

seeking to maximize their share of a finite supply of water at 

the expense of other interested parties. See id. at 5. The Court 

1 The Court explained in a footnote that two of our prior cases 

“arguably extend beyond . . . the typical examples.” Klamath, 532 

U.S. at 12 n.4. In Public Citizen, Inc. v. Department of Justice, 111 

F.3d 168 (D.C. Cir. 1997), we held that Exemption 5 protected from 

disclosure communications between former Presidents and the 

National Archives and Records Administration, even though the 

Presidents had “their own, independent interests” in mind. Klamath, 

532 U.S. at 12 n.4. And in Ryan v. Department of Justice, 617 F.2d 

781 (D.C. Cir. 1980), we held that Exemption 5 protected from 

disclosure questionnaire responses that Senators provided to the 

Attorney General about their judicial nomination processes. Despite 

the Court’s evident skepticism of those holdings, it did not explicitly 

overrule them. See Klamath, 532 U.S. at 12 n.4. 
10

therefore held that the documents were not protected by 

Exemption 5 even though, again, it fully credited the 

government’s “interest in frank communication” with the 

Tribes and its concern that disclosure would chill future 

communications. Id. at 11. 

III

Until now, we have not been required to reconcile Klamath 

with our consultant corollary precedent. In each of our postKlamath cases on this subject, the outsider “did not represent 

an interest of its own, or the interest of any other client” when 

it communicated with the agency. McKinley v. Bd. of 

Governors of Fed. Rsrv. Sys., 647 F.3d 331, 337 (D.C. Cir. 

2011) (alterations and internal quotation marks omitted); see 

Jud. Watch, Inc. v. U.S. Dep’t of Energy, 412 F.3d 125, 130–

31 (D.C. Cir. 2005); Nat’l Inst. of Mil. Just. v. U.S. Dep’t of 

Def. (“NIMJ”), 512 F.3d 677, 685 (D.C. Cir. 2008) (observing 

that “there is no dispute that the individuals [the agency] 

consulted were not pursuing interests of their own so as to run 

afoul of Klamath’s concern”). Since Klamath, in other words, 

we have only applied the corollary in “situations where an 

outside consultant did not have its own interests in mind.” Pub. 

Emps. for Env’t Resp. v. U.S. Section, Int’l Boundary & Water 

Comm’n, 740 F.3d 195, 201–02 (D.C. Cir. 2014).

This case is different. American Oversight does dispute 

whether the agency outsiders—members of Congress and their 

staffs—represented an interest of their own in the matters under 

discussion. As we explain in greater detail in Section IV of this 

opinion, American Oversight argues—and both the district

court and we agree—that members of Congress and their staffs

brought “divergent interest[s] to bear” when they engaged with 

the agencies concerning potential healthcare legislation. Am. 

Oversight, Inc., 2022 WL 1719001, at *13. As a result, and as

the district court also recognized, the outcome-determinative
11

question is whether the consultant corollary extends beyond 

what Klamath described as the typical case. Id. 

Presented with the question, we now follow the path 

marked by Klamath. To recap: The consultant corollary is 

limited to situations where the outside entity “functions just as 

an employee would be expected to,” in the sense that the entity

does not “represent an interest of its own, or the interest of any 

other client, when it advises the agency that [engages] it.” 

Klamath, 532 U.S. at 11. This does not mean that the outsider 

must be “devoid of a definite point of view” when 

communicating on the subject at issue—the outsider’s 

expertise and views on a subject, after all, are presumably why 

an agency would consult them. Id. at 10. Similarly, the 

possibility that a consultant is “paid” or “may derive 

intellectual satisfaction from consulting and possible adoption 

of their views does not mean that they have a personal or 

economic stake in the outcome.” Stewart v. U.S. Dep’t of 

Interior, 554 F.3d 1236, 1245 (10th Cir. 2009). The key is that 

the consultant must not have a stake in the outcome of the 

agency’s process that would render its advice on the subject 

anything other than disinterested. The inquiry is whether, like 

an agency employee, the consultant’s only “obligations are to 

truth and its sense of what good judgment calls for.” Klamath, 

532 U.S. at 11. 

This approach accommodates our twin duties as a panel of 

this court to give effect to both our precedent establishing the 

consultant corollary and the Supreme Court’s demand to give

“independent vitality” to the statutory term “intra-agency.” Id.

at 12. As Klamath put it, when an outsider functions “enough 

like the agency’s own personnel” in the sense described above,

its communications can be regarded as “intra-agency.” Id.

The same is not true of an outsider who is “self-interested” 

in the sense of having its own financial or other interest in the 
12

outcome of the agency’s process. As the Court recognized in

Klamath, that type of outsider cannot reasonably be regarded 

as the functional equivalent of an agency employee working on 

the same matter and so is not capable of “intra-agency” 

communications. Id. Thus, an organization with water-use 

expertise—but whose water does not come from the Klamath 

Basin—could fairly be considered “intra-agency” if it prepared

a report for and communicated with the Bureau of Indian 

Affairs on various allocation options; the organization would 

function like an employee with special expertise but no 

personal stake in the matter. But a tribe that stands to gain from 

the agency’s eventual decisions on water use in the Klamath 

Basin and submits a “position paper” on the issue would not. 

Id. at 13 (internal quotation mark omitted). 

The Ninth and Tenth Circuits have similarly adopted this 

approach to the consultant corollary following Klamath. See

Rojas v. FAA, 989 F.3d 666, 674–75 (9th Cir. 2021) (en banc);

Stewart, 554 F.3d at 1244–45. The Sixth Circuit has gone 

further and concluded that Klamath forecloses any form of the 

consultant corollary. Lucaj v. FBI, 852 F.3d 541, 548–49 (6th 

Cir. 2017). Meanwhile, no appellate court has adopted the 

alternative tests proposed by the government. And as we 

explain next, our adoption of the test Klamath suggests is 

reinforced by our assessment that each of the government’s 

proposals is improper. 

The government first urges that Exemption 5 covers any 

document, including those created by non-agency personnel,

that the agency considered as part of its deliberative process. 

See Gov’t Br. 20, 29. After Klamath, that cannot be the test. 

Indeed, the government urged a similar approach in Klamath 

itself, and the Supreme Court rejected it. See 532 U.S. at 11–

12. Again, that approach would deprive the first condition in 

Exemption 5—the requirement that the communication be 
13

“intra-agency”—of any “independent vitality.” Id. at 12. Like 

the Court in Klamath, we have no reason to doubt the 

government’s assertions that allowing disclosure of certain 

communications between Executive Branch agencies and 

Congress may chill the candor and extent of such discussions. 

See Gov’t Br. 5–6. But we are not at liberty to disregard either 

Klamath or the statutory text. To the extent any of our preKlamath precedents supported the government’s broad anydeliberative-document test, they are no longer good law. See, 

e.g., Dellums v. U.S. Nuclear Regul. Comm’n, 863 F.2d 968, 

978 n.11 (D.C. Cir. 1988) (“[A] circuit precedent eviscerated 

by subsequent Supreme Court cases is no longer binding on a 

court of appeals.”).2 

The government next argues that if Klamath has any effect 

on our precedent, it is only to create an exception based on the 

specific facts of that case. The government therefore suggests

that documents used in an agency’s deliberative process are 

always protected unless generated by or exchanged with

outsiders who were not just “self-advocates,” Klamath, 532 

U.S. at 12, but who were also operating “at the expense of 

others,” id., and thus “necessarily adverse” to competitors

outside the agency, id. at 13. 

It is certainly true that Klamath dictatesthat such facts take 

documents outside of Exemption 5’s protection. But nothing 

in Klamath instructs or even suggests that those facts constitute 

the proper test for determining whether a record is “intraagency” generally. Instead, the opinion clarified that the 

fundamental distinction rendering the Tribes unlike agency 

2 We have no occasion to revisit whether our two cases the 

Supreme Court identified as extending beyond the “typical” 

consultant corollary scenario were correctly decided on their facts. 

See Klamath, 532 U.S. at 12 n.4 (discussing Public Citizen, 111 F.3d 

168 and Ryan, 617 F.2d 781).
14

personnel in the relevant respect was that they “necessarily 

communicate[d] with the Bureau with their own . . . interests 

in mind.” Id. at 12. The additional fact that the Tribes were 

advocating for finite benefits at the expense of others served 

only to make the distinction from agency personnel “even 

sharper.” Id.; see also id. at 12 n.4 (“[T]he intra-agency 

condition excludes, at the least, communications to or from an 

interested party seeking a Government benefit at the expense 

of other applicants.” (emphasis added)). 

Moreover, no appellate court in the roughly twenty-three

years since Klamath has adopted that case’s specific facts as a 

generally applicable test. We can readily see why. The 

government offers no explanation of how using the facts of 

Klamath as the test for Exemption 5’s coverage would bear any 

relationship to the statutory requirement that the record at issue 

be “intra-agency.” As already explained, requiring the outsider 

to lack a stake in the outcome of the agency’s decision is a 

sensible application of that term, because then the outsider may 

function “just as an employee” inside the agency “would be 

expected to.” Id. at 11. The government ventures no theory of 

how an outsider with a stake in the outcome could ever be 

regarded as sufficiently analogous to agency personnel to fit 

within the statutory text. Nor does it provide any reason that 

the test should turn on whether that outsider is also competing 

with other agency outsiders for a finite benefit. 

Finally, the agencies note that Congress consciously 

designed FOIA to ensure that congressional documents would 

be exempt from disclosure. Congress, as noted, is specifically 

exempted from the definition of “agency” in 5 U.S.C. 

§ 551(1)(a), which identifies the entities subject to the statute’s

disclosure requirements. Nothing about today’s decision 

changes the fact that Congress itself is not subject to FOIA 

requests. Instead, a FOIA request can reach only “agency 
15

records.” 5 U.S.C. § 552(a)(4)(B); see Burka v. U.S. Dep’t of 

Health & Hum. Servs., 87 F.3d 508, 515 (D.C. Cir. 1996). 

Whether a document constitutes an “agency record” depends 

on a “‘totality of the circumstances’ test that ‘focuses on a 

variety of factors surrounding the creation, possession, control, 

and use of the document by an agency.’” Cause of Action Inst.

v. Off. of Mgmt. & Budget, 10 F.4th 849, 855 (D.C. Cir. 2021) 

(alterations omitted) (quoting Bureau of Nat’l Affs., Inc. v. U.S. 

Dep’t of Just., 742 F.2d 1484, 1490, 1492 (D.C. Cir. 1984)). A 

record from Congress does not become an “agency record” just 

because it comes into the agency’s possession if, for example,

“Congress manifested a clear intent to control the document.” 

United We Stand Am., Inc. v. I.R.S., 359 F.3d 595, 597 (D.C. 

Cir. 2004). On appeal, the agencies have not disputed that each 

of the communications at issue are agency records subject to 

FOIA.3

Our dissenting colleague would rule that all 

communications between agencies and Congress regarding 

potential legislation are protected by Exemption 5, but he

would do so on grounds entirely different from those the 

government offers. Unlike the government, the dissent argues 

that this case is not governed by the consultant corollary or 

Klamath at all. Instead, the dissent contends that its broad 

position is dictated by Rockwell International Corp. v. 

Department of Justice, 235 F.3d 598 (D.C. Cir. 2001), Murphy 

v. Department of Army, 613 F.2d 1151 (D.C. Cir. 1979), and 

3 In the district court, the United States House Committee on 

Ways and Means intervened and moved for summary judgment 

against American Oversight. The Committee argued that four 

records—all email chains with the agencies—were congressional 

records not subject to disclosure under FOIA. HHS and OMB 

opposed. The district court denied the Committee’s motion as moot

when it ruled that Exemption 5 protected the communications from 

disclosure. We express no view on the merits of any such challenge.
16

the text of 5 U.S.C. § 552(d). But—as the government’s failure 

to make this argument suggests—those cases and Section

552(d) do not address, much less control, the question here. 

In Rockwell and Murphy, there was no dispute that the 

documents at issue were intra-agency or inter-agency records 

and therefore satisfied Exemption 5’s threshold requirement. 

See Rockwell, 235 F.3d at 604; Murphy, 613 F.2d at 1154. That 

framing made sense, because the documents at issue were

confidential memoranda and reports that were prepared and 

finalized within an agency or agencies and only later shared 

with Congress. See Rockwell, 235 F.3d at 601; Murphy, 613 

F.2d at 1153–54. The disputed question in those cases was 

instead whether the agencies subsequently waived Exemption 

5’s protection by sending those documents to Congress. We 

answered no, drawing in part on 5 U.S.C. § 552(d), which 

states that “[t]his section is not authority to withhold 

information from Congress.” Because Congress had “carve[d] 

out for itself a special right of access to privileged information” 

in Section 552(d), we rejected a waiver rule under which 

“every disclosure to Congress would be tantamount to a waiver 

of all privileges and exemptions” available to executive 

agencies. Rockwell, 235 F.3d at 604 (quoting Murphy, 613 

F.2d at 1155–56). 

Unlike in Rockwell and Murphy, the disputed question in 

this case is Exemption 5’s threshold requirement—whether the 

communications between the agencies and Congress are intraagency documents. The parties do not raise or discuss the 

possibility of waiver. That framing again makes sense, given 

the nature of the documents at issue here: Communications 

generated through the iterative back-and-forth between the 

agencies and Congress. See, e.g., Gov’t Br. 2 (framing the 

issue on appeal as “[w]hether the withheld communications fall 

within Exemption 5’s protection of inter- and intra-agency 
17

records”). Contrary to the dissent, that question is governed by 

the consultant corollary and Klamath, which dealt with “tribal 

communications with the Bureau,” 532 U.S. at 11, not by cases 

addressing waiver or by Section 552(d). This opinion does not 

affect Murphy, Rockwell, or the government’s ability to argue, 

in a future case involving cross-branch interaction, that 

documents withheld under FOIA Exemption 5 were initially 

intra-agency or inter-agency and that the analysis should be 

framed in terms of whether the government waived those 

protections. But the government, for good reason, has not 

attempted to frame the communications at issue in this appeal 

in that way. 

This case also does not address the question—also raised 

only by the dissent—whether an agency’s communications 

with the President are “intra-agency” or “inter-agency,” 

because the only communications at issue here are those 

between Congress and agencies, not the President or his staff 

and the agencies. See Dissenting Op. 5–6 (citing Mink, 410 

U.S. at 85). 

If, as the government and the dissent fear, neither 

Exemption 5 nor any other exemption covers “records whose 

release would threaten . . . vital interests, the Government may 

of course seek relief from Congress. All we hold today is that 

Congress has not enacted the FOIA exemption the [agencies] 

desire[]. We leave to Congress, as is appropriate, the question 

whether it should do so.” Milner v. Dep’t of Navy, 562 U.S. 

562, 581 (2011) (citation omitted).

IV

Under the post-Klamath analysis, the communications 

between the agencies and Congress here are not covered by 

Exemption 5. As Klamath explained, the hallmark of a 

consultative relationship is that the outside entity is not 
18

“communicating with the Government in their own interest or 

on behalf of any person or group whose interests might be 

affected by the Government action addressed by the 

consultant.” 532 U.S. at 12. When that is true, the outsider

functions “just as an employee would be expected to.” Id. at 

11.

Cases in which members of Congress or their staffs could 

fit that description may be rare. Congress and the Executive 

Branch, of course, “have an ongoing institutional relationship 

as the ‘opposite and rival’ political branches established by the 

Constitution.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019,

2033–34 (2020) (quoting The Federalist No. 51, at 349 (John 

Madison) (J. Cooke ed. 1961)). And Congress has a particular 

institutional stake in the legislative process. Cf. Gravel v. 

United States, 408 U.S. 606, 616 (1972) (“The Speech or 

Debate Clause was designed to assure a co-equal branch of the 

government wide freedom of speech, debate, and deliberation 

without intimidation or threats from the Executive Branch.”). 

When members of Congress and their staffs engage with 

executive agencies concerning legislation, they are almost 

inevitably acting on behalf of interests other than those of the

agencies, including those of Congress as an institution and 

those of their constituents. 

This case, however, does not require us to decide—and we 

do not decide—whether members of Congress or their staffs 

could ever satisfy the post-Klamath consultant corollary 

requirements. In this case, the record makes clear that in the 

communications between the agencies and Congress, each side 

had an independent stake in the potential healthcare reform 

legislation under discussion. 

The agencies’ own declarations reveal this dynamic. 

OMB’s declarant stated that it “sought to influence and shape 

pending legislation by discussing, consulting, and negotiating 
19

with Congressional personnel.” J.A. 115 ¶ 20. The declarant 

similarly stated that some communications between “the 

Administration and Congress . . . discussed areas where they 

agreed and sources of ongoing disagreement.” J.A. 113 ¶ 16. 

For example, OMB withheld an email exchange “arranging a 

meeting between Administration officials and strategically 

selected House members. This exchange was part of the 

Administration’s development of their legislative strategy with 

respect to the health care bill (e.g. which members may be 

supportive and which were unlikely to be).” J.A. 463. An HHS 

declarant explains that the agency engaged in “deliberations”

with Congress, J.A. 205 ¶ 11, to “monitor and build support for 

the” reform effort, J.A. 206 ¶ 16.4 HHS thus withheld an email 

exchange that would reveal the agency’s “best strategy” “to 

assist with the legislation and be involved in the health care 

reform process.” J.A. 165.

4 The declarations also state that the agencies’ deliberations

with Congress informed the agencies’ own thinking in providing 

advice and recommendations within the Executive Branch. See, e.g.,

J.A. 110–11 ¶ 10 (OMB used the “communications” “to provide the 

President with analysis and recommendations regarding the 

[American Health Care Act] and other proposed health care reform 

legislation”); J.A. 205 ¶ 13 (HHS used the “discussions” to inform 

“HHS’[s] process for evaluating the potential rulemakings and 

operational changes that might be necessary if a bill passed”). But 

the agencies’ subsequent planning and advice-giving processes do 

not transmute the communications between the agencies and 

Congress into intra-agency materials. If agency officials instead

created records to memorialize their own internal deliberations 

during their negotiations with Congress, those records might be 

properly classified as intra-agency and protected by Exemption 5—

indeed, certain documents withheld here may fit that description. 

See, e.g., J.A. 154 (row 3). In fact, per Rockwell and Murphy, records

like those might even retain their protected character if they were 

later shared with congressmembers per Congress’s right of access.
20

An agency would not develop a “strategy” to “negotiate” 

with and “advocate” to outsiders to garner their “support” if 

those outsiders were analogous to an employee or a 

disinterested consultant without its own independent stake in 

the matter. At least where agencies and Congress engage in 

back-and-forth negotiations and related communications over 

the substance of potential legislation, Congress is plainly 

“represent[ing] an interest of its own”; otherwise, there would 

be no cause to negotiate. Klamath, 532 U.S. at 11. The 

members of Congress and their staffs certainly had 

“obligations to truth and [their] sense of what good judgment 

calls for.” Id. But Klamath makes clear those must be the 

consultant’s “only obligations,” and that is not true here. Id.

This case meaningfully differs from cases like McKinley, 

647 F.3d 331, in which this Court held, after Klamath, that 

communications between the Board of Governors of the 

Federal Reserve System (an agency) and the Federal Reserve 

Bank of New York (a private corporation) about a loan were 

protected by the consultant corollary. The Reserve Bank was 

an “operating arm” of the Board and, although it had a duty to 

develop its own view of whether the loan should be made, it 

did not “represent an interest of its own, or the interest of any 

other client,” when it did so. Id. at 337 (quoting Klamath, 532 

U.S. at 11). For the reasons described above, the negotiations 

here over the shape of potential legislation between the 

agencies and Congress are not analogous. 

The district court, for its part, recognized that “the records 

at issue would lose their Exemption 5 protection” if—as we 

hold today—Klamath requires that the “non-agency 

interlocutor must bring no divergent interest to bear.” Am. 

Oversight, Inc., 2022 WL 1719001, at *13. The government 

resists that conclusion, but its arguments are mistaken. 
21

As it argued in the district court, the government insists 

that Congress was not “self-interested” in the relevant sense 

because the agencies were part of the Trump Administration 

and communicated with “like-minded allies in Congress” who 

“shared the common goal of enacting health care reform

legislation.” Gov’t Br. 24–25. Our dissenting colleague 

endorses this argument. Dissenting Op. 12–14. But that

argument misunderstands the inquiry. The question for 

purposes of the consultant corollary is not whether the agency 

and non-agency share a common goal or interest at some level 

of generality. The question, instead, is whether the outsider is 

disinterested—whether it comes to the table with no obligation 

or stake in the outcome of an agency’s process other than a duty 

to provide good advice to the agency, just as the agency’s own 

personnel is expected to. Klamath, 532 U.S. at 11–12. Indeed, 

in Klamath the government acted as trustee for the Tribes and 

indisputably had substantially common goals and interests, but 

the Tribe’s independent interest in the water-allocation 

proceeding disqualified its communications from Exemption 

5’s protection. Id. at 5 (agency “filed claims on behalf of the 

Klamath Tribe alone in an Oregon state-court adjudication 

intended to allocate water rights”). Similarly, here, a health 

insurance company could have shared the administration’s 

goal of enacting healthcare reform legislation but could not 

qualify as an “intra-agency” consultant given its independent 

financial interest in the substance of any legislative reform. 

The government and dissent also note that members of 

Congress, like the President, take oaths to defend the 

Constitution of the United States. Gov’t Br. 24; Dissenting Op. 

12. If we declared this common obligation enough to trigger 

Exemption 5, we would be rewriting the statute to cover all 

“intergovernmental” communications rather than all “interagency or intra-agency” ones. The Supreme Court has 

cautioned against “taking a red pen to the [FOIA] statute” by 
22

“‘cutting out some’ words and ‘pasting in others.’” Milner, 

562 U.S. at 573 (quoting Elliott v. U.S. Dep’t of Agric., 596 

F.3d 842, 845 (D.C. Cir. 2010)). 

At bottom, the government bore the burden of establishing 

that Exemption 5 applies. Ancient Coin Collectors Guild v. 

U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011). Yet it 

did not submit any evidence showing that the relevant 

congressmembers and their staffs were functionally acting as 

agency employees. Instead, as we have explained, the record 

in this case shows that those who communicated with HHS and 

OMB about potential healthcare reform legislation had an

independent stake in the matter. 

The dissent disputes this analysis, asserting that it should 

be dispositive that American Oversight introduced “no 

evidence” to show this independent stake, Dissenting Op. 13, 

and failed to properly dispute before the district court the 

agencies’ factual claim that they and Congress “shared a 

common interest in enacting health care reform legislation,” id.

at 13–14; see J.A. 214–15.

That assertion ignores the essential aspects of our 

reasoning. As we have explained, the government bore the 

burden to show Exemption 5’s applicability. It chose to submit 

evidence relevant to its preferred legal rule but did not 

introduce evidence that could meet its burden under the reading 

of Klamath we endorse today, even though American 

Oversight advocated for that rule below. And the evidence the 

government did introduce shows the disqualifying independent 

stake. See supra at 19–21. Indeed, the district court itself, 

though it adopted the government’s rule, recognized that 

American Oversight would prevail on this record if American 

Oversight’s reading of Klamath governed. See Am. Oversight, 

Inc., 2022 WL 1719001, at *13.
23 

The communications at issue do not qualify as “intraagency memorandums or letters” under Exemption 5. 

V 

American Oversight also appeals the district court’s grant 

of summary judgment to HHS on the adequacy of its search for 

responsive records. Our review is de novo. Reps. Comm. for 

Freedom of the Press, 3 F.4th at 361. 

HHS bears the burden of showing “beyond material doubt 

that its search was ‘reasonably calculated to uncover all 

relevant documents.’” Valencia-Lucena v. U.S. Coast Guard, 

180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. U.S. 

Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “The 

adequacy of the search” turns on “a standard of reasonableness 

and depends . . . upon the facts of each case.” Weisberg v. U.S. 

Dep’t of Just., 745 F.2d 1476, 1485 (D.C. Cir. 1984). An 

agency can meet that burden by submitting “reasonably 

detailed, nonconclusory affidavits,” id., that explain “the scope 

and method of the search [it] conducted,” Morley v. CIA, 508 

F.3d 1108, 1121 (D.C. Cir. 2007) (quotation marks omitted). 

These affidavits are accorded a presumption of good faith that 

cannot be rebutted by “speculative claims about the existence 

and discoverability of other documents.” Ground Saucer 

Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). Even 

otherwise-adequate affidavits, however, can be rebutted by 

“positive indications of overlooked materials.” ValenciaLucena, 180 F.3d at 327 (quotation marks omitted). 

Based on the specific facts before us, we conclude that 

HHS failed to meet its burden and that American Oversight is 

entitled to summary judgment on this issue. 

American Oversight’s FOIA request sought records 

“relating to health care reform.” J.A. 131. HHS used three 

search terms in its efforts to locate responsive documents: 
24

“health care reform,” “ACA,” and “AHCA.” J.A. 122–23 

¶¶ 16–17. “ACA” stands for Affordable Care Act, the 

healthcare law then in effect. “AHCA” stands for American 

Health Care Act, the name of the primary bill then under 

consideration on Capitol Hill. In American Oversight’s view, 

HHS should also have searched for the unabbreviated names 

of those statutes, plus the terms “Obamacare” and “repeal and 

replace.” American Oversight requested an additional search 

along these lines, but HHS maintained its view that it had 

conducted an adequate search. See J.A. 51. 

Agencies are not invariably required to search their 

records using the terms proposed by the FOIA requestor, as 

long as the search terms they do use are “reasonably calculated 

to uncover all relevant documents,” Valencia-Lucena, 180 F.3d 

at 325. See, e.g., Physicians for Hum. Rts. v. U.S. Dep’t of Def., 

675 F. Supp. 2d 149, 164 (D.D.C. 2009); Liberation 

Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d 137, 146 

(D.D.C. 2015) (quoting Physicians for Hum. Rts., 675 F. Supp. 

2d at 164). 

At the same time, as several district courts in this Circuit 

have concluded, this discretion does not permit an agency to 

omit from their search obvious alternative terms without a 

detailed justification. See, e.g., Am. Oversight v. OMB, 613 F. 

Supp. 3d 219, 227–28 (D.D.C. 2020) (searching “FBI HQ” and 

“FBI Headquarters” but not “JEH,” the abbreviation for the J. 

Edgar Hoover FBI building, is unreasonable); Bagwell v. U.S. 

Dep’t of Justice, 311 F. Supp. 3d 223, 230 (D.D.C. 2018) 

(“Because it is likely that emails concerning the investigation 

would use ‘PSU’ or ‘Penn State’ rather than the full name of 

the University, the Department’s search was not reasonably 

calculated to find all responsive emails.”); Gov’t 

Accountability Project v. U.S. Dep’t of Homeland Sec., 335 F. 

Supp. 3d 7, 11–12 (D.D.C. 2018) (similar). Thus, even if the 
25

search terms used “reveal many [documents] responsive” to a 

request, it is possible that “omitting from the search an 

alternative name by which the subject of the search is known 

renders the search inadequate.” Utahamerican Energy, Inc. v. 

Mine Safety & Health Admin., 725 F. Supp. 2d 78, 84 (D.D.C. 

2010). 

That is the situation here. The agency’s affidavit 

sufficiently explains why it searched for “health care reform,” 

“ACA,” and “AHCA.” HHS says it searched “health care 

reform” because it appeared in American Oversight’s request. 

J.A. 122 ¶ 16. And it searched “ACA” and “AHCA” because 

those laws “represented the state of the health care reform 

legislative process at the time[,] and the search terms are 

frequently used in their abbreviated forms in the day-to-day 

operations of [the] Department.” J.A. 123 ¶ 17.

But on the terms left out of the search, the agency’s

affidavit is vague and conclusory. HHS’s declarant explained 

that the abbreviated versions “are frequently used in the dayto-day operations” within the agency, “as opposed to the 

unabbreviated versions,” and states that those terms “were 

therefore reasonably likely to locate responsive records.” J.A. 

122 ¶ 16. The declarant continued that “[i]t is reasonably likely 

that the use of more general terms would have resulted in an 

excessive number of records that would have been labeled 

‘potentially responsive,’ which [HHS] would have had to 

review and process, without a meaningful increase in the 

likelihood of identifying additional records that were actually 

responsive.” Id. The affidavit also states that HHS 

“determined that any potentially responsive records” would 

“contain one or more” of its chosen search terms. J.A. 123 

¶ 17.

That explanation does not constitute “reasonabl[e] detail” 

as to why HHS limited its search and omitted obvious 
26 

alternative terms for the subject matter of American 

Oversight’s request. Valencia-Lucena, 180 F.3d at 327. The 

statement that it is “reasonably likely” that using “more general 

terms” would result in “excessive” records is, at best, vague. 

Terms like the full statute names and the phrase “Obamacare” 

and even “repeal and replace” are no more general than the 

acronyms HHS used. Moreover, the statement that 

abbreviations like ACA and AHCA are “frequently used” does 

nothing to dispel the commonsense point that the 

unabbreviated forms and common terms like “Obamacare” or 

“repeal and replace” would also have been used often, even if 

not as frequently as HHS’s chosen terms. In the end, the 

agency offered no explanation for omitting those familiar terms 

except for its concerns about overbroad results. HHS “may not 

conduct an underinclusive search based on nothing more than 

the unexplained and conclusory assertion that a broader 

search[] might have been unduly burdensome.” Shteynlyuger

v. Ctrs. for Medicare & Medicaid Servs., No. 20 Civ. 2982 

(RDM), 2023 WL 6389139, at *16 (D.D.C. Sept. 30, 2023). 

We are therefore left with “material doubt” that the “search was 

‘reasonably calculated to uncover all relevant documents.’” 

Valencia-Lucena, 180 F.3d at 325 (quoting Truitt, 897 F.2d at

542). 

Moreover, though not required given the inadequacy of 

HHS’s affidavit, American Oversight has provided “positive 

indications of overlooked materials” to rebut the affidavit. Id.

at 327 (quotation marks omitted). American Oversight 

submitted transcripts and identified other documents showing 

that HHS employees, then-HHS Secretary Tom Price, and 

members of Congress used the unabbreviated statute names 

and the terms “Obamacare” and “repeal and replace.” Many 

of these statements use those terms without pairing them with 

the terms HHS included in its search. See, e.g., J.A. 344, 353, 
27

356–58, 360–61, 365, 368, 369, 371, 375–76, 378–79, 381, 

386–89, 393–94, 397, 414, 416, 428–429, 431, 435.

American Oversight requests records of communications

involving these individuals and others. And there is no reason 

to doubt that HHS and members of Congress and their staffs 

also used these terms in private communications. With that 

context, HHS’s conclusory statement that the abbreviations 

were “frequently used in the day-to-day operations” at HHS, 

“as opposed to the unabbreviated versions,” does not suffice.

J.A. 122 ¶ 16. We therefore conclude that HHS’s search must 

include the unabbreviated statutory references and the terms 

“Obamacare” and “repeal and replace.”

VI

Accordingly, we reverse the district court’s grant of 

summary judgment to HHS and OMB on the applicability of 

Exemption 5 to the records at issue and to HHS on the 

adequacy of its search; direct that American Oversight’s 

motion for summary judgment be granted insofar as the 

communications between the agencies and Congress are not 

covered by Exemption 5, and HHS’s search is inadequate; and 

remand for further proceedings consistent with our opinion.

So ordered.
WILKINS, Circuit Judge, concurring in part and dissenting 

in part: The principal question in this case is whether 

confidential communications about potential and pending 

legislation between members of Congress and officials within 

the Executive Branch should be considered intra-agency 

communications within the meaning of the Freedom of 

Information Act (FOIA), and thus exempt from disclosure to 

the public. The text, purpose, structure, and legislative history 

of the FOIA statute support application of the exemption. The 

ramifications of the majority’s contrary interpretation of FOIA 

are actually quite breathtaking. The majority’s rule will chill 

communications between Congress and the Executive, stymie 

the working relationship between Congress and the Executive, 

and inhibit the President’s ability to perform effectively the 

core Article II duty of recommending legislation to the 

Congress. I therefore respectfully dissent.1

I.

We start of course with the statutory text. FOIA provides 

that each agency must make its records available to members 

of the public upon request, subject to certain exemptions. 5 

U.S.C. §§ 552(a)–(b). At issue in this case is Exemption Five, 

also called the deliberative process privilege, which exempts 

from disclosure those “inter-agency or intra-agency 

memorandums or letters that would not be available by law to 

a party other than an agency in litigation with the agency[.]” 5 

U.S.C. § 552(b)(5). Because the definition of “agency” does 

not include Congress, 5 U.S.C. § 551(1)(A), the majority 

reasons that deliberative communications to or from Congress 

cannot constitute “intra-agency” communications of an 

Executive branch agency unless the Congress can be construed 

1 I agree with the analysis of my colleagues on the adequacy of 

search issues.
2

as a consultant, or agent, of that executive agency.2 Maj. Op. 

10–17.

But the question does not depend solely upon the 

construction of the term “agency,” because there is more 

relevant statutory text. Congress also specified in FOIA that 

“[t]his section is not authority to withhold information from 

Congress.” 5 U.S.C. § 552(d). We have previously explained 

that “the obvious purpose” of this language was for “the 

Congress to carve out for itself a special right of access to 

privileged information not shared by others.” Murphy v. Dep't 

of Army, 613 F.2d 1151, 1155–56 (D.C. Cir. 1979). As a result, 

we rejected a claim that the Army waived the deliberative 

process privilege (and Exemption Five protection) because it 

provided a deliberative document to a member of Congress. Id. 

To hold otherwise “would effectively transform section 552(c) 

into a congressional declassification scheme, a result supported 

neither by the legislative history of the Act, nor by general legal 

principles or common sense.” Id. at 1156. [Section 552(c) is 

now Section 552(d).] See Appellee Br. 25 (“It would 

undermine the statutory scheme if an agency’s decision to 

exchange privileged and confidential communications with 

Congress resulted in the public gaining access to materials that 

would have remained confidential if they had been solely 

exchanged within the agency, or solely exchanged within 

Congress,” citing Murphy).

As we explained, if “every disclosure to Congress [were] 

tantamount to a waiver of all privileges and exemptions, 

executive agencies would inevitably become more cautious in 

2

 As the majority acknowledges, there is no contention that a party 

in litigation with an Executive branch agency would be able to obtain 

the requested documents in discovery. See Maj. Op. 5–6. 
3

furnishing sensitive information to the legislative branch [–] a 

development at odds with public policy which encourages 

broad congressional access to governmental information.” 

Murphy, 613 F.2d at 1156. We expressly followed Murphy’s 

reasoning in Rockwell Int'l Corp. v. U.S. Dep't of Just., 235 

F.3d 598, 604 (D.C. Cir. 2001), where we held that the Justice 

Department did not waive Exemption Five protection by 

sharing deliberative documents with a Congressional 

subcommittee.

As we noted in Murphy, the final House Committee report 

prior to the passage of FOIA specifically stated that the purpose 

of Section 552(d) was to ensure that “a law controlling public 

access has absolutely no effect upon congressional access to 

information.” 613 F.2d at 1156 n.12 (quoting H.R. Rep. No. 

1497, 89th Cong., 2d Sess. 11–12 (1966)). This statement is 

quite significant, because during hearings on the legislation, 

several executive and independent agencies noted they had 

confidentially shared deliberative documents with Congress 

for decades, and most of those agencies expressed concern 

about the potential for public disclosure of those records if 

FOIA were enacted.

3

 This Committee Report shows that 

3 See Hearings Before the Senate Judiciary Committee, 

Subcommittee on Administrative Practice and Procedure, on S. 

1666, 88th Cong. 1st Sess., 318–19 (Oct. 28–31, 1963) (Securities 

and Exchange Commission noted that it treated as confidential and 

not subject to disclosure “[l]etters or reports to Members of 

Congress, committees of Congress, and other Government agencies 

or officials, unless and until such documents are made public by such 

recipients”); Hearings Before the House Government Operations 

Committee, Subcommittee on Government Information and Foreign 

Operations on H.R. 5012 et al., 89th Cong., 1st. Sess., 233 (March 

30-31; April 1–2, and 5, 1965) [hereinafter “1965 House Hearings”] 

(Atomic Energy Commission treats as confidential “correspondence 

with Members of Congress or congressional committees,” except if 
4

Congress, through Section 552(d), rejected that construction of 

the statutory text. As Representative Dante Fascell, a sponsor 

of the legislation retorted, such concerns “could not be further 

from the fact[,] because “[c]ertainly a communication between 

the Treasury Department and the Congress . . . would be 

protected by a provision of the legislation which protects

interagency messages on matters of policy.” 1965 House 

Hearings at 174. As Representative Fascell clarified, “[i]f the 

particular item of information is of the type which must be kept 

within the official Government family – and that includes the 

Congress – it should be withheld from all the public.” Id. 

(emphasis added). As another sponsor, then-Representative 

Donald Rumsfeld explained, “[t]he very special relationship 

between the executive and legislative branches is not affected 

by this legislation.” 89 Cong. Rec. 13020 (June 20, 1966). 

Representative John E. Moss, remembered as the “father” of 

FOIA, see Robert Mcg. Thomas Jr., “John E. Moss, 84, Is 

Dead; Father of Anti-Secrecy Law,” N.Y. Times, Dec. 6, 1997, 

responded to concerns about potential public disclosure of a 

deliberative Treasury Department report to Congress by 

declaring that “[the report] is an internal memorandum covered 

here under ‘interagency or intra-agency memoranda or letters 

dealing solely with matters of law or policy,’” and thus covered 

by the language of Exemption Five in the then-pending bill. 

1965 House Hearings at 71–72; see also id. at 3 (setting forth 

language of the bill).

Interpreting Section 552(d) to mean that Exemption Five 

should not be construed in a manner to upset the historic 

relationship between the Executive and Congress comports 

released by Congress or if related to a licensing, adjudication or a 

rulemaking); id. at 253 (Interstate Commerce Commission “ha[s] 

always believed that letters from the Commission to congressional 

committees or to individual Members of the Congress should not be 

disclosed by the Commission”).
5

with the structure and purpose of FOIA. Congress, in its 

wisdom, exempted its own records and communications 

(deliberative or otherwise) from public disclosure through 

FOIA. See 5 U.S.C. § 551(1)(A) (“‘agency’ . . . does not 

include . . . the Congress”); see also id. § 552(f)(1) (defining 

“agency” pursuant to section 551(1)). It makes no sense that 

this same Congress intended to disclose its own confidential, 

deliberative communications with executive agencies, while 

simultaneously exempting confidential, deliberative 

communications sent from one executive agency to another. 

Nor does it make sense that Exemption Five would protect a 

deliberative document sent from one executive agency to 

another – even though both agencies generally fall within the 

scope of FOIA – but it would not protect the same document 

from disclosure if either agency shared the document with 

Congress, even though Congress is not subject to FOIA. 

The anomalies of the majority’s logic do not end there. 

Congress also exempted the President and his or her top aides 

from the definition of agency. See Kissinger v. Reporters 

Committee for Freedom of the Press, 445 U.S. 136, 156 (1980) 

(construing then-5 U.S.C. § 552(e), now § 552(f)). Yet no one 

would seriously contend that an agency’s deliberations and 

recommendations lose Exemption Five protection when sent to 

the President or a top aide, based on a construction that the 

communications were neither sent from one “agency” to 

another “agency,” nor kept within the same “agency.” See EPA 

v. Mink, 410 U.S. 73, 85 (1973) (it was “beyond question” that 

unclassified documents attached to a report provided to the 

President by an interdepartmental group called the “Under 

Secretaries Committee” were “’inter-agency or intra-agency’ 

memoranda or ‘letters’” that fell within Exemption Five); see 

also Judicial Watch, Inc. v. Dept. of Energy, 412 F.3d 125, 

129–31 (D.C. Cir. 2005) (finding “inconceivable” that 

Congress intended for Exemption Five to protect deliberative 
6

documents of “agency” officials overseen by the President, but 

“not [such documents] 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”).

Klamath is not to the contrary. See Dep’t of Interior v. 

Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001). 

While the Court held that the terms “intra-agency” and “interagency” must be given “independent vitality,” id. at 12, as the 

government argues, see Appellee Br. 18, the Court also 

acknowledged that those terms could reasonably be construed 

as not necessarily having cramped, wooden meanings:

It is textually possible and ... in accord with the 

purpose of the provision, to regard as an intraagency memorandum one that has been 

received by an agency, to assist it in the 

performance of its own functions, from a person 

acting in a governmentally conferred capacity 

other than on behalf of another agency—e.g., in 

a capacity as employee or consultant to the 

agency, or as employee or officer of another 

governmental unit (not an agency) that is 

authorized or required to provide advice to the 

agency.

Klamath, 532 U.S. at 9–10 (quoting U.S. Dep’t of Justice 

v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting))

(emphases added). Because Klamath involved a report 

prepared by “outside consultants hired by [an agency],” id. at 

10, the Court resolved only the question whether 

communications of such outside consultants fall within 

Exemption Five. Klamath had no occasion to resolve whether 

Exemption Five covered communications from an “employee 

or officer of another governmental unit (not an agency) that is 
7

authorized or required to provide advice to the agency,” which 

the Court acknowledged was another “textually possible” way 

non-agency communications could nonetheless come within 

the scope of Exemption Five. 531 U.S. at 10, 12. Klamath also 

had no occasion to consider how Section 552(d) impacts the 

construction of Exemption Five specifically, or how FOIA 

impacts the relationship between the Executive and members 

of Congress generally.

In other words, Klamath did not “eviscerate” our holdings 

in Murphy or Rockwell interpreting Section 552(d) and its

impact on the relationship between Congress and the 

Executive, because the Court did not touch upon those issues. 

See Maj. Op. 13 (citing Dellums v. U.S. Nuclear Reg. Comm’n, 

863 F.2d 968, 978 n.11 (D.C. Cir. 1988)). Murphy and 

Rockwell are good law, and we are bound to follow that 

precedent. See LaShawn A v. Barry, 87 F.3d 1389, 1395 (D.C. 

Cir. 1996) (en banc). Further, because Klamath involved 

communications between an executive agency and a nongovernmental entity, the Court’s holding does not necessarily 

apply to communications between an executive agency and 

Congress. I share my colleagues’ concerns that we must be 

faithful to Supreme Court precedent, but I do not believe that 

concern requires applying the consultant corollary doctrine to 

Congress, particularly given Congress’s intent that FOIA’s 

passage would preserve, rather than impair, its relationship 

with the Executive.4

 Deploying the consultant corollary 

doctrine in these circumstances seems rather like forcing a 

square peg into a round hole.

4 I note that we have repeatedly held that Ryan v. Dept. of Justice, 

617 F.2d 781 (D.C. Cir. 1980) and subsequent precedent applying 

Ryan’s reasoning have not been overruled by Klamath. See Judicial 

Watch, Inc. v. Dept. of Energy, 412 F.3d 125, 129–31 (D.C. Cir. 

2005); Nat’l Inst. of Military Justice v. U.S. Dept. of Defense, 512 

F.3d 677, 679–87 (D.C. Cir. 2008). 
8

The majority contends that my reasoning is “entirely 

different” than the government’s, see Maj. Op. 15-17, but I beg 

to differ. As have I, the government cited Justice Scalia’s 

observation, quoted in Klamath, that “it is both ‘textually 

possible and much more in accord with the purpose’ of 

Exemption [Five] to read the term ‘intra-agency memorandum’ 

more expansively.” Appellee Br. 18 (quoting Julian, 486 U.S. 

at 18 n.1 (Scalia, J. dissenting). As have I, the government 

cited Murphy and Rockwell to argue “[i]t would undermine the 

statutory scheme if an agency’s decision to exchange 

privileged and confidential communications with Congress 

resulted in the public gaining access to materials that would 

have remained confidential if they had been solely exchanged 

within the agency, or solely exchanged within Congress.” 

Appellee Br. 25. Based upon all of this, the government 

articulated the governing test as primarily focused on “whether 

the communications were ‘part and parcel of the agency’s 

deliberative process.’” Appellee Br. 20 (quoting Rockwell, 235 

F.3d at 604). See also id. at 21 (documents at issue fell within 

Exemption Five because “the agencies communicated 

confidentially with members of Congress and their staff who 

possessed relevant views and other non-public information that 

would help the Executive Branch perform Executive Branch 

functions.”) (emphasis added); id. at 27 (“[t]he dividing line for 

Congressional communications is whether they are ‘part and 

parcel of the agency’s deliberative process’”) (quoting Dow 

Jones & Co. v. U.S. Dep’t of Justice, 917 F.2d 571, 575 (D.C. 

Cir. 1990)) (emphasis in the brief). While the government did 

not say explicitly, as have I, that the consultant corollary 

doctrine is completely ill-fitted to Executive-Congress advice, 

there is very little daylight between the government’s bottomline position and mine, based on our respective understandings 

of Klamath and the precedent in this circuit.
9

To that end, I note that the majority has no response to 

Klamath’s observation that it is “textually possible” for 

Exemption Five to cover communications from an “employee 

or officer of another governmental unit (not an agency) that is 

authorized or required to provide advice to the agency.” 531 

U.S. at 9–10, 12. Furthermore, while I agree with the majority 

that this case is not explicitly about whether the deliberative 

process privilege has been waived, that does not make our 

understanding of the purpose of Section 552(d), as explained 

in Murphy and Rockwell, irrelevant. The majority appears to 

agree that Section 552(d) demonstrates that Congress did not 

intend waiver of the privilege when an executive agency 

provides draft bill language to a member of Congress, 

presumably even if it were given to a member of Congress from 

a different party who does not support the bill. See Maj. Op. 

16. Yet, the majority holds that if a Congressmember fully 

supportive of the draft bill sends it back to the agency with 

proposed edits and comments to aid the President’s 

deliberations, then that communication falls completely 

outside the privilege, effectively subjecting the draft bill to 

public disclosure. Why would Congress intend to protect its 

right to receive information confidentially from the Executive, 

but not intend to protect its right to advise the Executive 

confidentially in response to the information it receives? How 

is such an outcome consistent with the fact that Congress did 

not intend for FOIA to impact the “very special relationship” 

between Congress and the Executive? The majority has no 

answers. Moreover, unless the Executive believes that 

members of Congress are like potted plants and will not 

provide their own feedback and advice in response to 

information given to them, the Executive will be disinclined to 

share sensitive deliberations with Congress. This is precisely 

the opposite effect intended by FOIA, as expressed in Section 

552(d) and explained in Murphy and Rockwell.
10

The majority’s holding has significant constitutional 

implications. Article II, Section 3 provides that the President 

“shall from time to time give to the Congress Information of 

the State of the Union, and recommend to their Consideration 

such Measures as he shall judge necessary and expedient. . . .” 

This provision, called the Recommendation Clause, requires

“the [P]resident to lay before [C]ongress all facts and 

information, which may assist their deliberations” and thus to 

“point out the evil, and to suggest the remedy.” 3 J. Story, 

Commentaries on the Constitution of the United States § 1555, 

p. 413 (1833). In order for the President to “initiate and 

influence legislative proposals,” Clinton v. City of New York, 

524 U.S. 417, 438 (1998), he and his emissaries need to be able 

to consult Congress. The President cannot make effective 

recommendations in a vacuum; without a good understanding 

of how Congress sees the problem and what its members will 

(or will not) support, he cannot know what, if any, legislation 

is worth expending valuable political capital to recommend. 

For good reason, we have found these types of internal 

communications to be part of the Executive’s deliberative 

process in the past. See Access Reports v. Dept of Justice, 926 

F.2d 1192, 1196–97 (D.C. Cir. 1991) (holding that staff 

memorandum related to “the Department's study of how to 

shepherd the FOIA bill through Congress” is covered by 

Exemption 5, and the exemption also protects records

“contributing to deliberations about whether to introduce 

legislation in the first instance”).

Here, the district court found, and it appears undisputed on 

appeal, that the documents at issue involved discussions 

between “members of Congress and congressional staff of the 

Republican Party who shared an interest with agencies in the 

current Republican administration in working to repeal the 

[Affordable Care Act] and replace it with the health care reform 

legislation that was under consideration.” J.A. 609 (quoting an 
11

executive official’s declaration). These discussions fall 

squarely within the President’s responsibilities under the 

Recommendation Clause. A ruling that these communications 

fall outside of Exemption Five will force the President to either 

make uninformed, less effective recommendations or to fulfill 

this constitutional duty in a fishbowl. Neither of those 

outcomes is consistent with the FOIA statute or the 

Constitution. 

It is no answer to say that Congress should not be 

considered to have consulted the President in this case because 

Congress has an “independent stake” in the legislation. See

Maj. Op. 17–23. One branch of government is impotent 

without the other. The President can recommend a bill, but a 

member of Congress has to introduce it. Congress can pass a 

bill, but absent extraordinary circumstances, it cannot become 

law without the President’s signature. To get a bill through 

Congress, the President must advocate for the bill, both 

publicly and privately during Congressional consideration. 

The interests of the Congressmembers communicating with 

executive officials in this case were more aligned than not, 

especially since these particular Congressmembers shared the 

President’s overall agenda with regard to health care 

legislation. Furthermore, a ruling that Congress consulted the 

President within the meaning of Exemption Five does not 

diminish Congress as a co-equal branch. Members of this 

Court consult each other daily during their deliberations; none 

of that portends that any one judge is subordinate to the other. 

So too with Congress and the Executive.

In sum, I do not believe that Klamath’s conflict of interest 

holding controls the key question in this case: whether the 

congressional officials “[are] authorized or required to provide 

advice to the agency.” Klamath, 532 U.S. at 10 (quoting 

Julian, 486 U.S. at 18 n.1). Because members of Congress are 
12

obviously authorized to provide advice to the Executive, I 

would find that these communications fall within Exemption 

Five.

II.

Even if Klamath’s consultant corollary test governed this 

case, I nonetheless believe it is an error to conclude there is a 

fatal conflict of interest present in these factual circumstances. 

Klamath held only that “the intra-agency condition 

excludes, at the least, communications to or from an interested 

party seeking a Government benefit at the expense of other 

applicants,” 532 U.S. at 12 n.4, such as communications by a 

party seeking “a claim . . . that is necessarily adverse to the 

interests of competitors,” id. at 14. Members of Congress are 

not “seeking government benefits” or seeking “claims” from 

the government; they are the government.

Further, Klamath explained that Exemption Five can apply 

where a consultant “functions just as an employee would be 

expected to do” because the consultant’s “only obligations are 

to truth and its sense of what good judgment calls for. . . .” 532 

U.S. at 11. We have no basis to hold that members of Congress 

and their staff do not have an “obligation to the truth and . . . 

good judgment,” as described in Klamath. Just as the President 

is bound by oath to “faithfully execute[]” his duties and support 

and defend the Constitution, U.S. Const. art. II, § 1, cl. 7, 

members of Congress take a similar oath, U.S. Const. art. VI, 

cl. 3. 

In that vein, I am compelled to point out that appellants 

introduced absolutely no evidence in the district court to 

support their arguments about a conflict of interest. There was 

no declaration from a current or former member of Congress, a 
13

current or former staffer, or an expert witness (like a political 

science professor). The government asserted, as an undisputed 

fact, that “[the Department of Health and Human Services and 

the Office of Management and Budget] and the members of 

Congress and their staff who exchanged the emails at issue in 

this case shared a common interest in enacting health care 

reform legislation.” 1:17-cv-00827-EGS Document 30-4 at 4–

5. Critically, as required by the federal rules, the government 

backed up this factual assertion with evidence (in the form of 

declarations from senior HHS and OMB officials). Id. See 

also Fed. R. Civ. P. 56(c)(1). The plaintiff asserted, without 

citing any evidence and adverting only to their briefs, that they 

disputed this fact, id., but that was plainly insufficient to 

dispute it. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–27 

(1986) (construing Fed. R. Civ. P. 56). Accordingly, the 

District Court credited the evidence that Congress and agencies 

shared a common interest. J.A. 609. Thus, the plaintiff’s

argument that Congress had an actual conflict of interest with 

the Executive has no support in the evidentiary record before 

us. 

Undeterred by the lack of evidence, the majority not only

finds that appellants have placed a fact in dispute which they 

failed to properly dispute; the majority proceedsto the next step 

to hold that appellants indisputably proved the conflict of 

interest, even without evidence. (Of course, if plaintiff had 

properly disputed the conflict-of-interest issue by submitting 

evidence to the district court, it could have held a hearing to 

resolve the disputed fact, and we would then review that 

finding. See Pavement Coatings Tech. Council v. U.S.

Geological Surv., 995 F.3d 1014, 1024 (D.C. Cir. 2021).) My 

colleagues can say they may take judicial notice that Congress 

and the Executive are rival branches of government; but if we 

go down that road, I would think we should also take judicial 

notice that members of Congress often share the interests of the 
14

President on specific pieces of legislation, particularly when 

the President is a member of the same party. Cf. Mistretta v. 

United States, 488 U.S. 361, 408 (1989) (“Our principle of 

separation of powers anticipates that the coordinate Branches 

will converse with each other on matters of vital common 

interest.”).

* * *

When Congress passed FOIA in 1966, the historic 

recognition of the privilege against disclosure of internal 

governmental deliberations was to remain intact. Congress 

also expressed that FOIA was not intended to affect Congress’s 

ability to obtain information from the Executive or share 

information with the Executive. When executive agencies or 

Congress correspond with members of the public, there is no 

expectation of confidentiality in those communications, so it 

only makes sense to treat those communications differently 

than communications between different branches of the 

government (where there is such an expectation). Further, an 

interested member of the public has no right or expectation that 

they can advise executive officials confidentially and ex parte, 

which is yet another reason to treat a private party’s 

communications differently than those of a member of 

Congress (who has a valid expectation that she can 

confidentially consult the Executive, and do so ex parte). For 

all those reasons, the text, structure, purpose and history of 

FOIA support Klamath’s holding that Exemption Five only 

applies to a private party’s communications with an agency if 

that private party is a consultant to the executive agency and 

has no conflicting private interest in the decision to be rendered 

by the agency. 

On the other hand, FOIA was not intended to grant citizens 

access to any information that had been previously subject to 
15

privilege. The executive officials and Congressmembers 

involved in this case had an expectation that their deliberations 

and communications with each other would be confidential, 

and it is conceded there is no history of these types of 

communications being subject to discovery by private citizens 

in civil or criminal litigation. In other words, nothing about the 

nature, circumstances, or history of communications between 

the Executive and Congress supports extending the conflict of 

interest holding of Klamath to the present context.

To sum up, the majority rule 1) violates the text and 

purpose of Section 552(d) with respect to Congress’s right to 

share information with, and receive information from, the 

Executive, 2) impedes the Constitutional duty of the Executive 

to consult with Congress on legislation, 3) effectively creates a 

waiver of the deliberative process privilege when two co-equal 

branches consult each other, and 4) grants public access to 

confidential deliberative documents that members of the public 

could not obtain if they were in litigation with the Executive. 

Klamath does not compel such a sweeping change to the status 

quo. This is not an instance where “Congress has not enacted 

the FOIA exemption the [agencies] desire,” Maj. Op. 17

(quoting Milner v. Dept. of Navy, 562 U.S. 562, 581 (2011)). 

This is an instance where the majority regrettably fails to 

harmonize Section 552(d) and Exemption Five to implement 

Congressional intent, as expressed by, among others, the 

“father” of FOIA. I respectfully dissent.