CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2000
Syllabus
DEPARTMENT OF THE INTERIOR ET AL.
v. KLAMATH WATER USERS
PROTECTIVE ASSOCIATION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No.99-1871. Argued January 10, 200l-Decided March 5, 2001
The Department of the Interior's Bureau of Reclamation
(Reclamation) administers the Klamath Irrigation Project (Project),
which uses water from the Klamath River Basin to irrigate parts of
Oregon and California. After the Department began developing the
Klamath Project Operation Plan (Plan) to provide water allocations
among competing uses and users, the Department asked the Klamath
and other Indian Tribes (Basin Tribes or Tribes) to consult with
Reclamation on the matter. A memorandum of understanding between
those parties called for assessment, in consultation with the
Tribes, of the impacts of the Plan on tribal trust resources.
During roughly the same period, the Department's Bureau of Indian
Affairs (Bureau) filed claims on behalf of the Klamath Tribe in an
Oregon state-court adjudication intended to allocate water rights.
Since the Bureau is responsible for administering land and water
held in trust for Indian tribes, it consulted with the Klamath
Tribe, and the two exchanged written memorandums on the appropriate
scope of the claims ultimately submitted by the Government for the
benefit of the Tribe. Respondent Klamath Water Users Protective
Association (Association) is a nonprofit group, most of whose
members receive water from the Project and have interests adverse
to the tribal interests owing to scarcity of water. The Association
filed a series of requests with the Bureau under the Freedom of
Information Act (ForA), 5 U. S. C. § 552, seeking access to
communications between the
2
Syllabus
Bureau and the Basin Tribes. The Bureau turned over several
documents, but withheld others under the attorney work-product and
deliberative process privileges that are said to be incorporated in
FOIA Exemption 5, which exempts from disclosure "inter-agency or
intra-agency memorandums or letters which would not be available by
law to a party other than an agency in litigation with the agency,"
§ 552(b)(5). The Association then sued the Bureau under FOIA to
compel release of the documents. The District Court granted the
Government summary judgment. The Ninth Circuit reversed, ruling out
any application of Exemption 5 on the ground that the Tribes with
whom the Department has a consulting relationship have a direct
interest in the subject matter of the consultations. The court said
that to hold otherwise would extend Exemption 5 to shield what
amount to ex parte communications in contested proceedings between
the Tribes and the Department.
Held: The documents at issue are not exempt from FOIA's
disclosure requirements as "inter-agency or intra-agency
memorandums or letters." Pp.7-16.
(a) Consistent with ForA's goal of broad disclosure, its
exemptions have been consistently given a narrow compass.
E.
g.,
Department of Justice v.
Tax Analysts, 492 U. S. 136, 151. Pp.
7-8.
(b) To qualify under Exemption 5's express terms, a document
must satisfy two conditions: its source must be a Government
agency, and it must fall within the ambit of a privilege against
discovery under judicial standards that would govern litigation
against the agency that holds the document. This Court's prior
Exemption 5 cases have addressed the second condition, and have
dealt with the incorporation of civil discovery privileges. So far
as they matter here, those privileges include the privilege for
attorney work product and the so-called "deliberative process"
privilege, which covers documents reflecting advisory opinions,
recommendations, and deliberations that are part of a process by
which Government decisions and policies are formulated.
NLRB
v.
Sears, Roebuck &
Co., 421 U. S. 132, 150. The
point of Exemption 5 is not to protect Government secrecy pure and
simple, and the Exemption's first condition is no less important
than the second; the communication must be "inter-agency or
intra-agency," 5 U. S. C. § 552(b)(5). "[A]gency" is defined to
mean "each authority of the Government," § 551(1), and includes
entities such as Executive Branch departments, military
departments, Government corporations, Government-controlled
corporations, and independent regulatory agencies, § 552(f).
Although Exemption 5's terms and the statutory definitions say
nothing about communications with outsiders, some Courts of Appeals
have held that a document prepared for a Government agency by an
outside consultant qualifies as an
3
"intra-agency" memorandum. In such cases, the records submitted
by outside consultants played essentially the same part in an
agency's deliberative process as documents prepared by agency
personnel. The fact about the consultant that is constant in the
cases is that the consultant does not represent its own interest,
or the interest of any other client, when it advises the agency
that hires it. Its only obligations are to truth and its sense of
what good judgment calls for, and in those respects it functions
just as an employee would be expected to do. Pp.8-l1.
(c) The Department misplaces its reliance on this consultant
corollary to Exemption 5. The Department's argument skips a
necessary step, for it ignores the first condition of Exemption 5,
that the communication be "intra-agency or inter-agency." There is
no textual justification for draining that condition of independent
vitality. Once the intra-agency condition is applied, it rules out
any application of Exemption 5 to tribal communications on analogy
to consultants' reports (assuming, which the Court does not decide,
that these reports may qualify as intra-agency under Exemption 5).
Consultants whose communications have typically been held exempt
have not communicated 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. In that
regard, consultants may be enough like the agency's own personnel
to justify calling their communications "intra-agency." The Tribes,
on the contrary, necessarily communicate with the Bureau with their
own, albeit entirely legitimate, interests in mind. While this fact
alone distinguishes tribal communications from the consultants'
examples recognized by several Circuits, the distinction is even
sharper, in that the Tribes are self-advocates at the expense of
others seeking benefits inadequate to satisfy everyone. As to those
documents bearing on the Plan, the Tribes are obviously in
competition with nontribal claimants, including those irrigators
represented by the respondent. While the documents at issue may not
take the formally argumentative form of a brief, their function is
quite apparently to support the tribal claims. The Court rejects
the Department's assertion that the Klamath Tribe's consultant-like
character is clearer in the circumstances of the Oregon
adjudication, where the Department merely represents the interests
of the Tribe before a state court that will make any decision about
the respective rights of the contenders. Again, the dispositive
point is that the apparent object of the Tribe's communications is
a decision by a Government agency to support a claim by the Tribe
that is necessarily adverse to the interests of competitors because
there is not enough water to satisfy everyone. The position of the
Tribe as Government beneficiary is a far cry from the position of
the paid consultant. The
4
Court also rejects the Department's argument that compelled
release of the documents at issue would impair the Department's
performance of its fiduciary obligation to protect the
confidentiality of communications with tribes. This boils down to
requesting that the Court read an "Indian trust" exemption into the
statute. There is simply no support for that exemption in the
statutory text, which must be read strictly to serve ForA's mandate
of broad disclosure. pp. 11-16.
189 F.3d
1034, affirmed.
SOUTER, J., delivered the opinion for a unanimous Court.
Malcolm L. Stewart argued the cause for petitioners.
With him on the briefs were Solicitor General Waxman, Assistant
Attorney General Ogden, Deputy Solicitor General Kneedler, Leonard
Schaitman, Matthew M. Collette, John Leshy, and Scott
Bergstrom.
Andrew M. Hitchings argued the cause for respondent.
With him on the brief were
Paul S.
Simmons and
Donald B. Ayer.*
JUSTICE SOUTER delivered the opinion of the Court. Documents in
issue here, passing between Indian Tribes and the Department of the
Interior, addressed tribal interests subject to state and federal
proceedings to determine water allocations. The question is whether
the documents are exempt from the disclosure requirements of the
Freedom of Information Act, as "intra-agency memorandums or
*Briefs of amici curiae urging reversal were filed for the Campo
Band of Mission Indians et al. by Susan M. Williams and Gwenellen
P. Janov; and for the Klamath Tribes et al. by Tracy A. Labin, Carl
Ullman, Curtis Berkey, Thomas P. Schlosser, Reid Peyton Chambers,
Jill E. Grant, Dan Rey-Bear, Alice E. Walker, John B. Carter, Peter
C. Chestnut, Rodney B. Lewis, Stephen V. Quesenberry, and Gregory
M. Quinlan.
Lucy A. Dalglish, Gregg P. Leslie, and
Bruce W
Sandford filed a brief for the Reporters Committee for Freedom
of the Press et al. as
amici curiae urging affirmance.
Briefs of
amici curiae were filed for the City of Tacoma,
Washington, by J.
Richard Creatura; and for United South and
Eastern Tribes, Inc., by
William W Taylor III, Michael R.
Smith, and
Eleanor H. Smith.
5
letters" that would normally be privileged in civil discovery. 5
U. S. C. § 552(b)(5). We hold they are not.
I
Two separate proceedings give rise to this case, the first a
planning effort within the Department of the Interior's Bureau of
Reclamation, and the second a state water rights adjudication in
the Oregon courts. Within the Department of the Interior, the
Bureau of Reclamation (Reclamation) administers the Klamath
Irrigation Project (Klamath Project or Project), which uses water
from the Klamath River Basin to irrigate territory in Klamath
County, Oregon, and two northern California counties. In 1995, the
Department began work to develop a long-term operations plan for
the Project, to be known as the Klamath Project Operation Plan
(Plan), which would provide for allocation of water among competing
uses and competing water users. The Department asked the Klamath as
well as the Hoopa Valley, Karuk, and Yurok Tribes (Basin Tribes) to
consult with Reclamation on the matter, and a memorandum of
understanding between the Department and the Tribes recognized that
"[t]he United States Government has a unique legal relationship
with N ative American tribal governments," and called for
"[a]ssessment, in consultation with the Tribes, of the impacts of
the [Plan] on Tribal trust resources." App. 59, 61.
During roughly the same period, the Department's Bureau of
Indian Affairs (Bureau) filed claims on behalf of the Klamath Tribe
alone in an Oregon state-court adjudication intended to allocate
water rights. Since the Bureau is responsible for administering
land and water held in trust for Indian tribes, 25 U. S. C. § 1a;
25 CFR subch. H, pts. 150-181 (2000), it consulted with the Klamath
Tribe, and the two exchanged written memorandums on the appropriate
scope of the claims ultimately submitted by the United States for
the benefit of the Klamath Tribe. The Bureau does not, how-
6
ever, act as counsel for the Tribe, which has its own lawyers
and has independently submitted claims on its own behalf.1
Respondent, the Klamath Water Users Protective Association
(Association), is a nonprofit association of water users in the
Klamath River Basin, most of whom receive water from the Klamath
Project, and whose interests are adverse to the tribal interests
owing to scarcity of water. The Association filed a series of
requests with the Bureau under the Freedom of Information Act
(FOIA), 5 U. S. C. § 552, seeking access to communications between
the Bureau and the Basin Tribes during the relevant time period.
The Bureau turned over several documents but withheld others as
exempt under the attorney work-product and deliberative process
privileges. These privileges are said to be incorporated in FOIA
Exemption 5, which exempts from disclosure "inter-agency or
intra-agency memorandums or letters which would not be available by
law to a party other than an agency in litigation with the agency."
§ 552(b)(5). The Association then sued the Bureau under FOIA to
compel release of the documents.
By the time of the District Court ruling, seven documents
remained in dispute, three of them addressing the Plan, three
concerned with the Oregon adjudication, and the seventh relevant to
both proceedings. See
189 F.3d
1034, 1036 (CA9 1999), App. to Pet. for Cert. 41a-49a. Six of
the documents were prepared by the Klamath Tribe or its
representative and were submitted at the Government's behest to the
Bureau or to the Department's Regional Solicitor; a Bureau official
prepared the seventh document and gave it to lawyers for the
Klamath and Yurok Tribes. See ibid.
1 The Government is "not technically acting as [the Tribes']
attorney.
That is, the Tribes have their own attorneys, but the United
States acts as trustee." Tr. of Oral Arg. 5. "The United States has
also filed claims on behalf of the Project and on behalf of other
Federal interests" in the Oregon adjudication.
Id., at 6.
The Hoopa Valley, Karuk, and Yurok Tribes are not parties to the
adjudication. Brief for Respondent 7.
7
The District Court granted the Government's motion for summary
judgment. It held that each document qualified as an inter-agency
or intra-agency communication for purposes of Exemption 5, and that
each was covered by the deliberative process privilege or the
attorney work-product privilege, as having played a role in the
Bureau's deliberations about the Plan or the Oregon adjudication.
See 189
The Court of Appeals for the Ninth Circuit reversed.
189 F.3d
1034 (1999). It recognized that some Circuits had adopted a
"functional" approach to Exemption 5, under which a document
generated outside the Government might still qualify as an
"intra-agency" communication. See id., at 1037-1038. The court saw
no reason to go into that, however, for it ruled out any
application of Exemption 5 on the ground that "the Tribes with whom
the Department has a consulting relationship have a direct interest
in the subject matter of the consultations."
Id., at 1038.
The court said that "[t]o hold otherwise would extend Exemption 5
to shield what amount to ex parte communications in contested
proceedings between the Tribes and the Department."
Ibid.
Judge Hawkins dissented, for he saw the documents as springing
"from a relationship that remains consultative rather than
adversarial, a relationship in which the Bureau and Department were
seeking the expertise of the Tribes, rather than opposing them."
Id., at 1045. He saw the proper enquiry as going not to a
document's source, but to the role it plays in agency
decisionmaking. See id., at 1039. We granted certiorari in view of
the decision's significant impact on the relationship between
Indian tribes and the Government, 530 U. S. 1304 (2000), and now
affirm.
II
Upon request, FOIA mandates disclosure of records held by a
federal agency, see 5 U. S. C. § 552, unless the documents fall
within enumerated exemptions, see § 552(b). "[T]hese
8
limited exemptions do not obscure the basic policy that
disclosure, not secrecy, is the dominant objective of the Act,"
Department of Air Force v.
Rose, 425 U. S. 352, 361
(1976); "[c]onsistent with the Act's goal of broad disclosure,
these exemptions have been consistently given a narrow compass,"
Department of Justice v.
Tax Analysts, 492 U. S. 136, 151
(1989); see also
FBI v.
Abramson, 456 U. S. 615, 630 (1982)
("FOIA exemptions are to be narrowly construed").
A
Exemption 5 protects from disclosure "inter-agency or
intra-agency memorandums or letters which 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). To qualify, a document must thus satisfy
two conditions: its source must be a Government agency, and it must
fall within the ambit of a privilege against discovery under
judicial standards that would govern litigation against the agency
that holds it.
Our prior cases on Exemption 5 have addressed the second
condition, incorporating civil discovery privileges. See,
e.
g.,
United States v.
Weber Aircraft Corp., 465 U. S. 792, 799-800
(1984); NLRB v.
Sears, Roebuck &
Co.,
421 U. S. 132,
148 (1975) ("Exemption 5 withholds from a member of the public
documents which a private party could not discover in litigation
with the agency"). So far as they might matter here, those
privileges include the privilege for attorney workproduct and what
is sometimes called the "deliberative process" privilege. Work
product protects "mental processes of the attorney,"
United
States v.
Nobles, 422 U. S. 225, 238
(1975), while deliberative process covers "documents reflecting
advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies are
formulated,"
Sears, Roebuck &
Co., 421 U. S., at
150 (internal quotation marks omitted). The deliberative process
privilege rests on the obvious realization that officials will not
communicate candidly among them-
9
selves if each remark is a potential item of discovery and front
page news, and its object is to enhance "the quality of agency
decisions," id., at 151, by protecting open and frank discussion
among those who make them within the Government, see EPA v. Mink,
410 U. S. 73,
86-87 (1973); see also
Weber Aircraft Corp., supra, at
802.
The point is not to protect Government secrecy pure and simple,
however, and the first condition of Exemption 5 is no less
important than the second; the communication must be "inter-agency
or intra-agency." 5 U. S. C. § 552(b)(5). Statutory definitions
underscore the apparent plainness of this text. With exceptions not
relevant here, "agency" means "each authority of the Government of
the United States," § 551(1), and "includes any executive
department, military department, Government corporation, Government
controlled corporation, or other establishment in the executive
branch of the Government ... , or any independent regulatory
agency," § 552(f).
Although neither the terms of the exemption nor the statutory
definitions say anything about communications with outsiders, some
Courts of Appeals have held that in some circumstances a document
prepared outside the Government may nevertheless qualify as an
"intra-agency" memorandum under Exemption 5. See,
e. g.,
Hoover v.
Dept. of Interior, 611 F.2d
1132, 1137-1138 (CA5 1980);
Lead Industries Assn. v.
OSHA, 610 F.2d
70, 83
(CA2 1979);
Soucie v.
David, 448 F.
2d 1067 (CADC 1971). In
Department of Justice v.
Julian, 486 U.
S. 1 (1988), JUSTICE SCALIA, joined by JUSTICES O'CONNOR and
White, explained that "the most natural meaning of the phrase
'intra-agency memorandum' is a memorandum that is addressed both to
and from employees of a single agency," id., at 18, n. 1
(dissenting opinion). But his opinion also acknowledged the more
expansive reading by some Courts of Appeals:
"It is textually possible and ... in accord with the purpose of
the provision, to regard as an intra-agency mem-
10
orandum 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." Ibid.2
Typically, courts taking the latter view have held that the
exemption extends to communications between Government agencies and
outside consultants hired by them. See,
e. g.,
Hoover,
supra, at 1138 ("In determining value, the government may deem
it necessary to seek the objective opinion of outside experts
rather than rely solely on the opinions of government appraisers");
Lead Industries Assn., supra, at 83 (applying Exemption 5 to
cover draft reports "prepared by outside consultants who had
testified on behalf of the agency rather than agency staff"); see
also
Government Land Bank v.
GSA, 671 F.2d
663, 665
(CA5 1982) ("Both parties agree that a property
appraisal, performed under contract by an independent professional,
is an 'intra-agency' document for purposes of the exemption"). In
such cases, the records submitted by outside consultants played
essentially the same part in an agency's process of deliberation as
documents prepared by agency personnel might have done. To be sure,
the consultants in these cases were independent contractors and
were not assumed to be subject to the degree of control that agency
employment could have entailed; nor do we read the cases as
necessarily assuming that an outside consultant must be devoid of a
definite point of view when the agency contracts for its services.
But the fact
2 The majority in
Julian did not address the question
whether the documents at issue were "inter-agency or intra-agency"
records within the meaning of Exemption 5, because it concluded
that the documents would be routinely discoverable in civil
litigation and therefore would not be covered by Exemption 5 in any
event. 486 U. S., at 11-14.
11
about the consultant that is constant in the typical cases 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. Its only obligations are to truth and its sense of what
good judgment calls for, and in those respects the consultant
functions just as an employee would be expected to do.
B
The Department purports to rely on this consultant corollary to
Exemption 5 in arguing for its application to the Tribe's
communications to the Bureau in its capacity of fiduciary for the
benefit of the Indian Tribes. The existence of a trust obligation
is not, of course, in question, see
United States v.
Cherokee Nation of Okla., 480 U. S. 700, 707
(1987);
United States v.
Mitchell, 463 U. S. 206, 225
(1983);
Seminole Nation v.
United States, 316 U. S. 286, 296-297
(1942). The fiduciary relationship has been described as "one of
the primary cornerstones of Indian law," F. Cohen, Handbook of
Federal Indian Law 221 (1982), and has been compared to one
existing under a common law trust, with the United States as
trustee, the Indian tribes or individuals as beneficiaries, and the
property and natural resources managed by the United States as the
trust corpus. See,
e. g., Mitchell, supra, at 225. Nor is
there any doubt about the plausibility of the Government's
assertion that the candor of tribal communications with the Bureau
would be eroded without the protections of the deliberative process
privilege recognized under Exemption 5. The Department is surely
right in saying that confidentiality in communications with tribes
is conducive to a proper discharge of its trust obligation.
From the recognition of this interest in frank communication,
which the deliberative process privilege might protect, the
Department would have us infer a sufficient justification for
applying Exemption 5 to communications with the Tribes, in the same
fashion that Courts of Appeals have found sufficient reason to
favor a consultant's advice that
12
way. But the Department's argument skips a necessary step, for
it ignores the first condition of Exemption 5, that the
communication be "intra-agency or inter-agency." The Department
seems to be saying that "intra-agency" is a purely conclusory term,
just a label to be placed on any document the Government would find
it valuable to keep confidential.
There is, however, no textual justification for draining the
first condition of independent vitality, and once the intraagency
condition is applied,3 it rules out any application of Exemption 5
to tribal communications on analogy to consultants' reports
(assuming, which we do not decide, that these reports may qualify
as intra-agency under Exemption 5). As mentioned already,
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.
In that regard, consultants may be enough like the agency's own
personnel to justify calling their communications "intra-agency."
The Tribes, on the contrary, necessarily communicate with the
Bureau with their own, albeit entirely legitimate, interests in
mind. While this fact alone distinguishes tribal communications
from the consultants' examples recognized by several Courts of
Appeals, the distinction is even sharper, in that the Tribes are
self-advocates at the expense of others seeking benefits inadequate
to satisfy everyone.4
3 Because we conclude that the documents do not meet this
threshold condition, we need not reach step two of the Exemption 5
analysis and enquire whether the communications would normally be
discoverable in civil litigation. See
United States v.
Weber Aircraft Corp., 465 U. S. 792, 799
(1984).
4 Courts of Appeals have recognized at least two instances of
intraagency consultants that arguably extend beyond what we have
characterized as the typical examples. In
Public Citizen,
Inc. v.
Department of Justice, 111
F.3d 168 (CADC 1997), former Presidents were so treated in
13
As to those documents bearing on the Plan, the Tribes are
obviously in competition with nontribal claimants, including those
irrigators represented by the respondent. App. 6671. The record
shows that documents submitted by the Tribes included, among
others, "a position paper that discusses water law legal theories"
and "addresses issues related to water rights of the tribes," App.
to Pet. for Cert. 42a-43a, a memorandum "contain[ing] views on
policy the BIA could provide to other governmental agencies,"
"views concerning trust resources," id., at 44a, and a letter
"conveying the views of the Klamath Tribes concerning issues
involved in the water rights adjudication," id., at 47a. While
these documents may not take the formally argumentative form of a
brief, their function is quite apparently to support the tribal
claims. The Tribes are thus urging a position necessarily adverse
to the other claimants, the water being inadequate to satisfy the
combined demand. As the Court of Appeals said, "[t]he Tribes'
demands, if satisfied, would lead to reduced water allocations to
members of the Association and have been protested by Association
members who fear water shortages and economic injury in dry years."
189
The Department insists that the Klamath Tribe's consultant-like
character is clearer in the circumstances of the Oregon
adjudication, since the Department merely represents the interests
of the Tribe before a state court that will
their communications with the National Archives and Records
Administration, even though the Presidents had their own,
independent interests,
id., at 171. And in
Ryan v.
Department of Justice, 617 F.2d
781 (CADC 1980), Senators' responses to the Attorney General's
questionnaires about the judicial nomination process were held
exempt, even though we would expect a Senator to have strong
personal views on the matter. We need not decide whether either
instance should be recognized as intra-agency, even if
communications with paid consultants are ultimately so treated. As
explained above, 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.
14
make any decision about the respective rights of the contenders.
Brief for Petitioners 42-45; Reply Brief for Petitioners 4-6. But
it is not that simple. Even if there were no rival interests at
stake in the Oregon litigation, the Klamath Tribe would be pressing
its own view of its own interest in its communications with the
Bureau. Nor could that interest be ignored as being merged somehow
in the fiduciary interest of the Government trustee; the Bureau in
its fiduciary capacity would be obliged to adopt the stance it
believed to be in the beneficiary's best interest, not necessarily
the position espoused by the beneficiary itself. Cf. Restatement
(Second) of Trusts § 176, Comment
a (1957) ("[I]t is the
duty of the trustee to exercise such care and skill to preserve the
trust property as a man of ordinary prudence would exercise in
dealing with his own property ... ").
But, again, the dispositive point is that the apparent object of
the Tribe's communications is a decision by an agency of the
Government to support a claim by the Tribe that is necessarily
adverse to the interests of competitors. Since there is not enough
water to satisfy everyone, the Government's position on behalf of
the Tribe is potentially adverse to other users, and it might ask
for more or less on behalf of the Tribe depending on how it
evaluated the tribal claim compared with the claims of its rivals.
The ultimately adversarial character of tribal submissions to the
Bureau therefore seems the only fair inference, as confirmed by the
Department's acknowledgment that its "obligation to represent the
Klamath Tribe necessarily coexists with the duty to protect other
federal interests, including in particular its interests with
respect to the Klamath Project." Reply Brief for Petitioners 8; cf.
Nevada v.
United States, 463 U. S. 110, 142 (1983)
("[W]here Congress has imposed upon the United States, in addition
to its duty to represent Indian tribes, a duty to obtain water
rights for reclamation projects, and has even authorized the
inclusion of reservation lands within a project, the analogy of a
faithless private fiduciary cannot be
15
controlling for purposes of evaluating the authority of the
United States to represent different interests"). The position of
the Tribe as beneficiary is thus a far cry from the position of the
paid consultant.
Quite apart from its attempt to draw a direct analogy between
tribes and conventional consultants, the Department argues that
compelled release of the documents would itself impair the
Department's performance of a specific fiduciary obligation to
protect the confidentiality of communications with tribes.5
Because, the Department argues, traditional fiduciary standards
forbid a trustee to disclose information acquired as a trustee when
it should know that disclosure would be against the beneficiary's
interests, excluding the Tribes' submissions to the Department from
Exemption 5 would handicap the Department in doing what the law
requires. Brief for Petitioners 36-37.6 And in much the same vein,
the Department presses the argument that "FOIA is intended to cast
light on existing government practices; it should not be
interpreted and applied so as to compel federal agencies to perform
their assigned substantive functions in other than the normal
manner."
Id., at 29.
All of this boils down to requesting that we read an "Indian
trust" exemption into the statute, a reading that is out
5 The Department points out that the Plan-related documents
submitted by the Tribes were furnished to the Bureau rather than to
Reclamation, a fact which the Department claims reinforces the
conclusion that the documents were provided to the Department in
its capacity as trustee. Brief for Petitioners 47. This fact does
not alter our analysis, however, because we think that even
communications made in support of the trust relationship fail to
fit comfortably within the statutory text.
6We note that the Department cites the Restatement for the
proposition that a "'trustee is under a duty to the beneficiary not
to disclose to a third person information which he has acquired as
trustee where he should know that the effect of such disclosure
would be detrimental to the interest of the beneficiary.''' Brief
for Petitioners 36 (quoting Restatement (Second) of Trusts § 170,
Comment s (1957)). It is unnecessary for us to decide if the
Department's duties with respect to its communications with Indian
tribes fit this pattern.
16
of the question for reasons already explored. There is simply no
support for the exemption in the statutory text, which we have
elsewhere insisted be read strictly in order to serve FOIA's
mandate of broad disclosure,7 which was obviously expected and
intended to affect Government operations. In FOIA, after all, a new
conception of Government conduct was enacted into law, "'a general
philosophy of full agency disclosure.'"
Department of
Justice v.
Tax Analysts, 492 U. S., at 142 (quoting S.
Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). "Congress believed
that this philosophy, put into practice, would help 'ensure an
informed citizenry, vital to the functioning of a democratic
society.'" 492 U. S., at 142 (quoting
NLRB v.
Robbins
Tire &
Rubber Co., 437 U. S. 214, 242
(1978)). Congress had to realize that not every secret under the
old law would be secret under the new.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
7 The Department does not attempt to argue that Congress
specifically envisioned that Exemption 5 would cover communications
pursuant to the Indian trust responsibility, or any other trust
responsibility. Although as a general rule we are hesitant to
construe statutes in light of legislative inaction, see
Bob
Jones Univ. v.
United States, 461 U. S. 574, 600
(1983), we note that Congress has twice considered specific
proposals to protect Indian trust information, see Indian Amendment
to Freedom of Information Act: Hearings on S. 2652 before the
Subcommittee on Indian Affairs of the Senate Committee on Interior
and Insular Mfairs, 94th Cong., 2d Sess. (1976); Indian Trust
Information Protection Act of 1978, S. 2773, 95th Cong., 2d Sess.
(1978). We do so because these proposals confirm the commonsense
reading that we give Exemption 5 today, as well as to emphasize
that nobody in the Federal Government should be surprised by this
reading.
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