Open records request wins unanimous approval

The first Freedom of Information Act victory at the Supreme Court in eight years reigns in a government attempt to broaden the scope of the agency deliberations exemption

From the Spring 2001 issue of The News Media & The Law, page 36.

In a unanimous opinion, the U.S. Supreme Court ruled on March 5 that Native American tribal documents submitted to the Department of the Interior and its Bureau of Indian Affairs during federal and state water rights allocation proceedings must be disclosed under the federal Freedom of Information Act. The court affirmed the decision of the U.S. Court of Appeals in San Francisco (9th Cir).

The decision represents an unusual victory for FOI requesters, who have not prevailed before the high court since 1993. In the last two FOI Act cases the court agreed to decide, the high court ultimately ruled for the government without actually holding a hearing and vacated decisions below that had been favorable to requesters.

The case arose after the Klamath Water Users Protective Association was denied access by the Department of the Interior to tribal communications over water rights.

The agency had invoked an exemption to the FOI Act for inter- or intra-agency records that would divulge the deliberative processes of government agencies. It claimed that the trustee relationship between the agency and the tribes made their communications to each other privileged and protected from disclosure by the deliberative process and attorney-client protections covered by the FOI Act exemption for inter- or intra-agency communications.

The association, whose members’ interests in the water competed with tribal interests, argued that the records did not fall within the inter- or intra- agency exception because they were communications to and from an interested party in a Department of the Interior decision-making and advocacy process.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief supporting the users association. The American Society of Newspaper Editors and the Society of Professional Journalists joined the brief.

The high court disagreed with the agency, saying that any communication from a tribe to the Department of the Interior “would be pressing its own view of its own interest”and that would be the case “even if there were no rival interests at stake.”

This interest, the court wrote, prevents tribal communications with the government from being categorized as inter- or intra-agency records. Interpreting the statute otherwise would not “serve FOIA’s mandate of broad disclosure,” according to the opinion, written by Justice David Souter.

Less than a month after the Supreme Court ruling, the government gave the association documents it found so valuable that it may request more communications from the agency, according to the association’s attorney, Andrew Hitchings of Sacramento. He said the documents were very valuable to his client’s understanding of the tribal influence on the agency’s decision-making.

“The content of the documents provided the Klamath Water Users Protective Association with some valuable insight on various technical data that the tribes and the Bureau of Indian Affairs were relying upon to make decisions regarding Klamath Project operations,” Hitchings said. — CC