National Wildlife Federation v. United States Forest Service

The National Wildlife Federation (National Wildlife) appeals from the district court’s entry of summary judgment in favor of the United States Forest Service (Forest Service) on National Wildlife’s request for disclosure of documents pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I

National Wildlife sought copies of certain internal documents from the Forest Service, pursuant to the FOIA: (1) working drafts of the Wallowa-Whitman National Forest Plan (Forest Plan), (2) working drafts of an environmental impact statement (draft EISs) relating to the Forest Plan, and (3) “previews” of the drafts, which aré comments, criticisms, and recommendations made by the Land Management Planning Office in Washington, D.C. (Washington Office). Asserting that all of these documents were “predeeisional,” the Forest Service refused to release any of them under exemption (b)(5) of FOIA, 5 U.S.C. § 552 (b)(5) (exemption 5). National Wildlife pursued its requests through available administrative channels, but was unable to procure any of the withheld documents.

National Wildlife then filed a complaint in United…

concurring:

I concur in the result reached by Judge Wallace. In this case the district court was not clearly erroneous in concluding that the *1124 contested documents were properly withheld under exemption (b)(5) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (b)(5) (exemption 5). The portions of the draft Forest Plans, draft EISs, and “previews” in question were not factual, but rather were deliberative in nature. They represented analyses of and tentative opinions about issues of concern to the Forest Service — aspects of the decision-making process covered by exemption 5. I write separately, however, because the language in the opinion is far broader than necessary or appropriate to decide this case. The majority applies a test developed in a line of District of Columbia Circuit cases that exempts factual materials “from disclosure to the extent that they reveal the mental processes of decision-makers.” Majority opinion at 14112 (citing cases).

Under the majority’s so-called “functional” test, FOIA is swallowed up by exemption 5, a result contrary to the plain purpose of the Act. FOIA is a disclosure statute which “seeks to permit access to official information…

861 F.2d 1114 NATIONAL WILDLIFE FEDERATION, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE, Defendant-Appellee. No. 87-3552. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 10, 1987. Vacated and Remanded Jan. 5, 1988. Resubmitted Oct. 7, 1988. Decided Nov. 14, 1988. Michael Axline, Western Natural Resources Law Clinic, Eugene, Or., for plaintiff-appellant. Judith D. Kobbervig, Asst. U.S. Atty., Dist. of Or., Portland, Or., for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before WRIGHT, WALLACE and PREGERSON, Circuit Judges. WALLACE, Circuit Judge: 1 The National Wildlife Federation (National Wildlife) appeals from the district court's entry of summary judgment in favor of the United States Forest Service (Forest Service) on National Wildlife's request for disclosure of documents pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 . We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 , and we affirm. 2 * National Wildlife sought copies of certain internal documents from the Forest Service, pursuant to the FOIA: (1) working drafts of the Wallowa-Whitman National Forest Plan (Forest…