Justices will decide depth of exemption

Feds argue tribal comments are confidential under act

From the Winter 2001 issue of The News Media & The Law, page 39.

In the only Freedom of Information case on the U.S. Supreme Court calender this session, the justices must decide whether an exemption to the federal law includes documents submitted to a federal agency by American Indian tribes in the Pacific Northwest.

The records in question include documents of correspondence between the American Indian tribes and the Department of the Interior. Similar documents submitted by other water users to the department were released to the tribes after they submitted FOI Act requests. However, when other water users made FOI Act requests for the tribes’ documents the requests were denied. The water users brought suit in federal court to gain access to the tribes’ submissions.

During the Jan. 10 Supreme Court argument, Assistant to the Solicitor General Malcolm Stewart, who argued on behalf of the Department of the Interior, said that the intra- or inter-agency records exemption to the federal law should be extended to cover material submitted by American Indian tribes to the department while it determined how to allocate water in the Klamath River Basin region of Oregon.

Although Stewart admitted that the records did not “fit within the most common conception of what an inter-agency or intra-agency memorandum would be,” he contended that the records should be considered inter-agency records because of the unique trust relationship the United States has with the tribes. He relied on previous case law, primarily out of the U.S. Court of Appeals (D.C. Cir.), in which the court extended the terms intra- and inter-agency to cover records submitted to an agency by a senator and the president because the records were submitted by parties acting as consultants, aiding the agency in its business.

When Chief Justice William Rehnquist asked Stewart why other courts have allowed records created outside an agency to be considered inter-agency records instead of “simply read(ing) what the statute says,” Stewart replied that the courts “have come to the conclusion that some documents submitted by outside persons play a role in the agency’s deliberations that is so similar to the role that a staff memorandum would play.”

The justices had many concerns about the government’s argument. Rehnquist asked about a bill that failed in Congress in 1976 that would have allowed tribal communications to be exempted from the FOI Act, implying that had Congress wanted the FOI Act to cover tribal communications it would have passed that law.

Rehnquist and Justice Sandra Day O’Connor pointed-out that a tribe is clearly not an agency and, therefore, not literally covered by the language of the intra- or inter-agency exemption.

“Certainly, what you have here does not literally fill that bill,” Rehnquist said.

But perhaps the overriding concern of several of the justices stemmed from the apparently uneven treatment various people would receive under an extension of the inter-agency exemption.

Justice Ruth Bader Ginsburg said an extension of the inter-agency exemption to cover tribal communications would keep some records from public view that would be disclosed if any other party had submitted similar records to the government.

“One of the statements made is that the United States has been routinely turning over what it gets from the water association to the tribes,” she said. “The tribes get information from one side that has a stake in this venture, but that side doesn’t get what the tribe is giving to the government, so it looks like it’s not even handed.”

Justice David Souter asked similar questions about extending the privilege to only tribal communications, noting “that’s the real rub in deciding whether we should stretch the Freedom of Information Act language broadly enough to in effect allow the United States to grant privileges to one of the interest groups it’s supposed to favor, the Indians, as against the other interest groups, water users, the general public, what-not, and that’s a great stretch.”

Souter also pointed-out that in cases where the courts had extended the inter-agency exemption to cover senators and the president because they were considered consultants to the agency, the agency was not acting as an advocate or adjudicator as it was in the Klamath River Basin case. He said he was concerned about creating an entirely new definition of inter-agency in order to cover the records submitted by a person interested in the outcome of an agency determination.

Souter said, “the analogy between the consultant and the agency fails here because the agency here is in fact wearing more than one hat. It seems to me the only way you can win is to come up with a new exception, or a new interpretation of inter- or intra-agency, and I haven’t heard what that is yet.”

Andrew Hitchings, who argued on behalf of the Klamath Water Users Protective Association, reiterated the premise voiced by Ginsburg and Souter that documents submitted by interested parties seeking a benefit from an agency determination could not be considered inter-agency.

“FOIA exemption 5 does not apply to communications between the government and outside non-agency parties when the communications concern the government’s allocation of a valuable right or benefit among these non-agency parties,” he said.

Justice Stephen Breyer was the only justice who voiced concern about the association’s position. While Breyer acknowledged that including tribal communications within the exemption would be a “stretch of the language,” he said forbidding the extension would present confidentiality problems. Breyer worried that the documents submitted by the tribes to government attorneys could lose any confidential status that may be enjoyed by other trustees or clients.

“The court privileges would be useless to the Indians, and that would be not only true in your situation, it would be true in every situation,” he said. “Now, that’s what worrying me.”

Hitchings addressed Breyer’s concern by pointing-out that “one of the potential off-ramps to that is that there may be other FOIA exemptions that would apply in other cases.” Justice Antonin Scalia supported Hitchings by mentioning that the “moral is you should never pick a trustee who enacts a Freedom of Information Act.”

The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief on behalf of the association, joined by the American Society of Newspaper Editors and the Society for Professional Journalists.

The brief argued that water right adjudications are important to the public and often times tribal water rights are integral to these adjudications. Because these issues are of such a high public importance, it is vital that the media be able to access communications from interested parties, such as the communications of the tribes interested in the outcome of the Klamath water adjudication.

The friend-of-the-court brief, which can be found at https://www.rcfp.org/news/documents/klamath.html, further argued that the unique relationship the United States has with American Indians does not create a relationship of the type contemplated by the D.C. Circuit. –CC