Maricopa Audubon Society v. United States Forest Service

As in the companion ease filed today, Maricopa Audubon Society v. United States Forest Service, 108 F.3d 1082 (9th Cir. 1997) the Maricopa Audubon Society and one of its members, Dr. Robin Silver (collectively referred to as “Audubon”), appeal the partial denial of a request for information from the United States Forest Service pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 . Here, the Forest Service withheld portions of an internal investigative report on allegedly illegal and unethical management of the Southwestern Region of the Forest Service, and portions of a letter from one of the accused officials in response to the allegations that triggered the inquiry. The Forest Service argues that the withheld materials reveal its “deliberative process” and therefore fall within exemption 5 of FOIA, 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.” 5 U.S.C. § 552 (b)(5). The district court granted summary judgment in favor of the Forest Service. We have jurisdiction, 28 U.S.C. § 1291 , and we affirm.

BACKGROUND

In November…

concurring:

I write separately because I cannot agree with the majority’s suggestion in Part II that subjective, recommendatory, deliberative work-product is not exempt under Exemption 5 if the work-produet is generated in a process of routine agency self-evaluation. As that issue is not presented here — the Jahn report was commissioned to help Director Thomas respond to specific allegations of mismanagement in the Southwestern Region, not to assist Director Thomas in a routine review of Forest Service Policy — the discussion is at best “cautionary dictum,” see Majority Op. at 2589, that should not bind a subsequent court which squarely faces the issue.