Dept of Interior v. Klamath Water Users Protect. Assoc. - Oral Argument

Argument of Malcolm L. Stewart

Chief Justice Rehnquist: We'll hear argument next in Number 99-1871, Department of the Interior and Bureau of Indian Affairs v. Klamath, the Klamath Water Users Protective Association.

Mr. Stewart.

Mr. Stewart: Mr. Chief Justice, and may it please the Court:

This case involves the application of exemption 5 of the Freedom of Information Act to seven documents that pertain to the Federal Government's exercise of its responsibility to act as trustee for the property and natural resources of Indian tribes.

Six of the seven documents were submitted by the Klamath tribes to the Department of the Interior at the Government's request.

The seventh document was prepared by a DOI official and was provided to attorneys for the Klamath and...

Chief Justice Rehnquist: By DOI, Department of the Interior?

Mr. Stewart: That's correct.

The documents relate to the United States' representation of the tribes' interests in a pending general Oregon stream adjudication as well as to the Bureau of Reclamation's management of the Klamath reclamation project during the period while that adjudication remains pending.

Justice O'Connor: Mr. Stewart, there was some long-term plan for this water basin that was being considered?

Mr. Stewart: At the time that the documents submitted, the Department of Interior or the Bureau of Reclamation more specifically was attempting to prepare a long-term operations plan for the Klamath project.

Justice O'Connor: Has that been abandoned?

Mr. Stewart: It has not been abandoned.

The long... no draft long-term plan has yet been issued, but the...

Justice O'Connor: Is it still under preparation?

Mr. Stewart: It is still under preparation.

Chief Justice Rehnquist: Is it ongoing?

Mr. Stewart: It is still ongoing on a year-by-year basis the Bureau of Reclamation, or BOR, manages the Klamath project based on water availability during the course of that year.

The idea behind the long-term operations plan, sometimes known as the Klamath project operations plan, or KPOP colloquially, was to devise a methodology whereby the Department would decide in advance how water would be distributed in both wet and dry years, whereas current practice has been at the beginning of the season to assess the likely availability of water and make a determination for that year.

The preparation of the KPOP in a sense interacts with the United States' representation of the tribes in the Oregon general stream adjudication, because it's the State of Oregon that will be making the final permanent determination as to who has what water rights and in what order of priority and, in connection with that adjudication, the United States has filed claims on behalf of the tribes, on behalf of the project, as well as on behalf of other Federal interests.

Justice Souter: So in the Oregon litigation I take it then the United States is really acting as counsel for the tribes?

Mr. Stewart: We are not technically acting as their attorney.

That is, the tribes have their own attorneys, but the United States acts as trustee.

It has filed claims in the Oregon adjudication...

Justice Souter: Well, are the claims that the tribes' lawyers are supporting the claims that the United States filed, or are they separate claims?

Mr. Stewart: The United States has filed claims on behalf of the tribes.

With regard to virtually the entirety of the United States submission the tribes have filed a document that simply says, we accept and incorporate by reference the claims of the United States.

Justice Souter: So...

Mr. Stewart: With respect to a small fraction of the case the tribes have filed their own claim that differs marginally from that of the United States on their behalf, but I think there is nearly a 100-percent alignment of interests in the Oregon...

Justice Souter: So your interests... with that minor exception, your interests are identical.

Counsel, technically, is separate?

Mr. Stewart: That's correct.

Chief Justice Rehnquist: Okay.

Justice Stevens: But isn't it true the United States has an interest other than just representing the tribes' interest?

Mr. Stewart: That's correct.

The United States has also filed claims on behalf of the project and on behalf of other Federal interests.

For instance, there is a wildlife refuge in the area for which the United States...

Justice Stevens: If there were a separation of responsibility within the United States presentations and if these documents had been given to the right hand rather than the left hand of the United States, would you still say they were privileged?

Mr. Stewart: I think we would certainly say that to the extent the submissions were submitted... to the extent the documents were submitted to the United States in its capacity as trustee, that is, with regard to the preparation of the United States' claims on the tribes' behalf, they would be privileged and confidential.

Chief Justice Rehnquist: But wasn't there some effort at the time the FOIA was drafted or amended to put in an exemption for a trustee which Congress turned down?

Mr. Stewart: In 1976 there was a legislative proposal that would have created a new FOIA exemption for all documents in the possession of a Government agency pertaining to the exercise of trust responsibilities, and that bill was never acted on.

That bill would have accomplished an exemption from the FOIA that is significantly broader than the exemption we're asking for here.

That is, the applicability of that exemption would not have turned on whether the documents came from the tribes initially and, perhaps more important, it wouldn't have turned on whether particular documents would be privileged from discovery in civil litigation.

That is, the focus of the court of appeals' concern... perhaps I should turn to page 2 of our brief, which sets forth the language of exemption 5 of the Freedom of Information Act.

Exemption 5 states that the requirement of compelled disclosure does not apply to matters that are, quote, interagency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency, and...

Chief Justice Rehnquist: Certainly what you have here does not literally fill that bill, does it?

Mr. Stewart: It certainly doesn't fit within the most common conception of what an interagency or intraagency memorandum would be.

The courts of appeals have, over the past 30 years, devised a methodology for determining when documents that were created by persons outside the Government may nevertheless be regarded as sufficiently internal from a pragmatic point of view that they can qualify for the exemption.

Chief Justice Rehnquist: Why would they go about that business... why wouldn't they simply read what the statute says?

Mr. Stewart: I think because they 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.

Chief Justice Rehnquist: Did they call it a consultative privilege?

Mr. Stewart: They haven't referred to it as a consultative privilege, but they have certainly said that they have used outside consultants as an example of the types...

Chief Justice Rehnquist: People that the agency hires to do work that the agency would otherwise do?

Mr. Stewart: There are really two different categories of cases in the courts of appeals, and one is as you suggest.

That is, there are situations in which a person is consulted because he has preexisting expertise but no particular institutional perspective on the matter at issue, and there I think it is fair to say that the basis for the arrangement is that this person is serving in effect as a temporary employee, performing the role an employee would perform.

There are other cases in the...

Justice O'Connor: Well, you don't assert that all tribal communications with the Federal Government concerning tribal resources are always exempt from disclosure under FOIA, do you?

Mr. Stewart: No.

We would say that the document needs to be submitted to the Government in its capacity as trustee.

So, for example, if the Fish & Wildlife Service is making a determination as to whether a particular species should be listed as threatened or endangered under the Endangered Species Act it's possible that the outcome of that listing decision might have a practical effect on the way in which tribal land can be used.

Chief Justice Rehnquist: You say as a trustee.

Where do you get that out of the statute?

Mr. Stewart: Oh, the statute refers to interagency or intraagency memorandums and the courts of appeals, in determining what can be properly regarded as internal, have focused on the existence of a special relationship between the outside person and the government official, and in many instances the outside person, as I say, is one who fulfills the role of an agency employee.

Justice Souter: But that...

Justice O'Connor: But the tribe is not an agency.

Mr. Stewart: The tribe is not an agency.

Justice O'Connor: So it's literally not covered.

Mr. Stewart: It is not covered under the most natural reading of that language.

I think there is a sense in which these submissions are properly characterized as interagency, and that is when the Federal Government actively solicits advice and assistance, when it identifies the person from whom advice is sought, when it constructs the decision... when it constructs the consultative process in a way that is reasonably designed to further the Government's own interests, the resulting document can be said to be internal in the sense that the circle begins and ends with the Government.

Justice Scalia: Well, okay, but...

It isn't a matter of being... it seems to me all of... almost all of the courts of appeals cases you're referring to do deal with consultants who have been hired by the Government to further the Government's own interests.

This is really part of the Government's operating.

The tribe here was not seeking to further the Government's interests at all.

It was seeking to further its own interests.

I think it's a stretch beyond what most of these courts of appeals cases... which I agreed with.

I mean, I've spoken to that in an earlier case, but this seems to me to take it a step further, and I can see how you can get to the conclusion that a consultant whom you hire, any memorandum produced by that consultant who was hired by you is an intraagency memorandum.

I do not see how you can leap to the conclusion that anything that is given to you by a trustee, by a trust, is an intraagency memorandum.

I mean, maybe it should be confidential, but I find it hard to call that an intraagency memorandum.

Mr. Stewart: Well, with respect to the existing court of appeals case law, certainly the consultant temporary employee is the paradigmatic example, but the D.C. Circuit has also applied this approach in cases such as Ryan and Public Citizen to Members of the Senate, to a former President who was advising the archivist regarding the proper disposition of records created during his term of office, where the idea was not that the person outside the Government was stepping into the shoes of an agency employee, or adopting an employee's perspective.

Justice Scalia: No, but it was surely... I mean, the Senate didn't have its own ax to grind when it was giving the Justice Department information about judicial nominees.

It was certainly trying to further the Government's interest, not its own interest.

Mr. Stewart: But it was consulted precisely because it would have a distinct perspective on the proper manner of accomplishing the Government's objectives, and that's really...

Justice Kennedy: In that view, if the Klamath Water Users' Association had submitted these documents, would they also be privileged from disclosure?

Mr. Stewart: No, because the United States does not act as a trustee for the Water Users Association.

Justice Kennedy: So then it's not the deliberative process privilege that we're talking about at all.

It's simply this trust relationship.

Mr. Stewart: I think the trust relationship is the thing that brings this case within a larger principle.

Justice O'Connor: No, but...

Justice Ginsburg: And yet you concede that the trust relationship in itself doesn't create any exemption under FOIA, and Mr. Stewart, this is the problem that I have with the picture here.

It's the one-way-street aspect of it.

I mean, you said the United States has made claims on behalf of the water association, too.

Mr. Stewart: It has not made claims on behalf of the water association.

It has made claims on behalf of the project, but the association and...

Justice Ginsburg: Where they have the same interest, where there's an identity of interest between... the United States might agree with the users on some of the questions, is that not so?

Mr. Stewart: There are certainly aspects of the case on which we and the users are in agreement.

Justice Ginsburg: What... but, and the users and the tribes are in, at least in tension on some of these issues.

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, so the information... 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 evenhanded.

Mr. Stewart: I think to understand why, in our view, it is evenhanded, it's essential to explain that there are several component agencies within the Department of the Interior, but two that are particularly important here, the Bureau of Indian Affairs and the Bureau of Reclamation.

Now, both the tribes and the water users corresponded with the Bureau of Reclamation, or BOR, and BOR received a FOIA request from both the tribes and the users association asking for the documents that the others had submitted, and for better or for worse BOR turned everything over.

BOR was absolutely evenhanded in divulging both tribal communications and the water users association communications.

It may be that under our theory BOR should not have been quite so forthcoming, but it was.

There was no disuniformity with respect to BOR.

BIA was a different story.

BIA is set up with the special responsibility of exercising the Government's trust responsibilities to the Indian tribes.

It essentially corresponds with the Indian tribes, and it would be unusual for the water users to correspond with BIA at all.

BIA was the subagency within the Department of the Interior that refused to disclose some of these documents, with one exception of the seven.

One of the adjudication-related documents was addressed to the Regional Solicitor of the Department of the Interior.

So primarily we are concerned with documents that were submitted to a subagency within DOI whose particular sphere of duty and expertise is the exercise of trust responsibilities for the tribes, and this Court in Nevada v. United States emphasized the BIA's unique mission, its separate juridical status...

Justice Souter: No, but isn't the value of that emphasis, if it has any value at all, only proportional to the independence of BIA from the rest of the Department of Interior, because I think the questions of several of my colleagues here have raised the same point.

If the BIA is not independent of them, then your analogy between the tribes and the consultants fails.

If we accept the consultant situation as being inter or intraagency, we can rationalize it by saying, as several have said, that the consultants really are doing something that the Department itself might be doing.

It's an extension of the Department.

It's reportable only to the Department.

But if, in fact, the Indian tribes are consulting with an agency which is concerned not only with the Indian tribes' interests, but in adjusting those interests as against the interests of other claimants, which seems to be the case here, then you don't have an analogy with a situation in which the Department and the consultant alone are involved, so it seems to me your whole argument either stands or falls on the independence of BIA, and we know that the BIA is not somehow totally independent of the rest of the Department of the Interior, whether it's preparing a KPOP or whether it's representing the United States in Oregon litigation.

Mr. Stewart: I mean, I guess I have two or three responses to that.

First, you're correct that the BIA is not an independent agency.

It is a subagency of DOI, and therefore is ultimately subject to DOI control.

At the same time, the Government is attempting to deal in a pragmatic fashion with the sort of combination of responsibilities that no private party would ever be given.

That is, things would certainly be cleaner from our point of view of DOI could either say, we will treat the tribes exactly like we treat everyone else, or it could say, we will treat the tribes exactly as a private trustee would treat the beneficiary, namely, show it a duty of undivided loyalty.

It's clear, I think from first principles and from this Court's decision in Nevada v. United States, that the Department can't pursue either of those courses.

It must on the one hand fulfill its trust responsibilities but on the other hand it has other responsibilities that would be considered conflicting if they were imposed on a private person, so giving BIA primary responsibility for the carrying out of the Department's trust mission is a pragmatic response to an admittedly messy situation.

The other thing I would say is, we don't contend that the tribes are analogous to a consultant in the sense of stepping into the shoes of an agency employee or doing what an agency employee would otherwise do.

To the contrary, we think the input from the tribes is essential if the Department is to carry out its trust responsibilities, but that's precisely because the tribes have an expertise and a perspective that no agency employee would have.

Justice Souter: Well, that's true, but I mean the problem comes because the Department has responsibilities to other people, too and it is... in effect, on your view of the Freedom of Information Act, it is able to favor one side with information while denying an equal, in effect an equal access to another side, and...

Mr. Stewart: Well, certainly...

Justice Souter: 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.

Mr. Stewart: Well, again I would say, for better or for worse, the BOR did not favor the tribes vis-a-vis the water users.

It was equally responsive to both FOIA requests.

The only...

Justice Ginsburg: But I think your position here today is, it didn't have to be, that it could claim an exemption with respect to whatever it gets from the tribes.

Mr. Stewart: Not whatever it gets from the tribes, but whatever the tribes submit to it in its capacity as trustee, so yes, our position would be, if the tribes approach BOR and say, in order to fulfill the United States' duties as trustee, the BOR must take the following management steps.

Chief Justice Rehnquist: Well, Mr. Stewart, your argument would be very convincing if Congress had enacted that trustee thing, but it didn't.

Mr. Stewart: I mean, I think it's... obviously, one of the arguments advanced in favor of the legislation that was proposed in 1976 was that the legislation would clarify the ambiguity, would make it unnecessary to resolve difficult questions concerning the application of existing FOIA exemptions, but I think the Court has long taken the position that the FOIA should be implemented in a practical way, that it should be implemented in a way that doesn't interfere with the Government's performance of its substantive...

Justice Ginsburg: But also that the exemption shall be narrowly construed.

The Court has said that repeatedly.

The main rule is, disclose unless you fit into one of these exemptions, and the exemptions are to be tightly construed.

Mr. Stewart: I mean, certainly, if we are able to persuade the Court that the threshold language is satisfied here, that is that these documents are properly regarded as interagency or intraagency memorandums or letters, we would still have to persuade presumably the court of appeals on remand that the documents would be privileged...

Justice Ginsburg: But the question is whether it fits within... the words for the exemption are interagency.

That's what has to be strictly construed.

Mr. Stewart: And in the past...

Justice Ginsburg: Once you get past that, then there's an issue that isn't even before us now whether these are deliberative and whatever else.

Mr. Stewart: I mean, with respect, I think the Court's general methodology has been to construe the threshold language of the various exemptions in a way that would protect the values that the body of the exemption is intended to protect, and the Court has said, in a shorthand formulation admittedly, that exemption 5 protects those documents, and only those documents that would be privileged in civil discovery.

I mean, the point is, most of the work here is supposed to be done by the inquiry into whether there is actually an applicable privilege.

It maybe that the threshold language will screen out some things that would be privileged in discovery, but there's no indication, either in the legislative history or in this Court's decisions, that the threshold language is supposed to screen out a lot.

To take another example...

Justice Souter: No, but we can't construe the exemption as if it were an exemption only for privileged material, because we've got inter or intraagency language that has somehow got to be satisfied before we get to the question of privilege.

Mr. Stewart: But I think it's also worth emphasizing that the one alternative that I think is not clearly on the table is to give the threshold language an absolutely rigid literal interpretation.

That is to say, nothing can be...

Justice Souter: Okay, and we've been assuming in our arguments, at least for the sake of argument, that we wouldn't be so literal as to exclude the relationship between the consultant and the agency, but the analogy between the consultant and the agency fails here because the agency here is in fact wearing more than one hat.

It's in the role of an advocate, or the role of an adjudicator, vis-a-vis the Indian tribe, so that analogy doesn't work, and it seems to me the only way you can win is to say, well, come up with a new exception, or a new interpretation of inter or intraagency, and I haven't heard what that is yet.

If we don't accept the analogy with the consultant...

Mr. Stewart: I mean, I think the...

Justice Souter: and we don't have another model for a construction or an exception, then I think you're... then I think you have to lose.

Mr. Stewart: I mean, I think the best analogy from the existing case law is to the Senators in Ryan and to the former President in Public Citizen.

That is, these are people who were not literally part of any FOIA agency, and who were consulted not because they were expected to perform exactly the same role as an agency employee.

Rather, they were consulted because they were believed to have a distinct institutional perspective.

Justice Souter: Okay, was the United States in that case in the position, formally or informally of adjudicating the interests, say of the President vis-a-vis somebody else?

Mr. Stewart: I mean, certainly the archivist was ultimately going to be making the determination whether particular documents would be made public or not, and in other private individuals such as Public...

Justice Souter: But at the time the privilege was recognized, or the exemption was recognized, was the archivist in the situation of saying, well, I have the President telling me to do one... or whoever it was... telling me to do one thing and a bunch of historians want me to do something else, so I'll consult with the President, and my consultation with him should be exempt.

Was that the situation?

Mr. Stewart: I don't know that it had progressed to quite that point, but certainly the point of the scheme was that private parties would like to have as much information as possible from the former President's records in order to do whatever type of research they wanted to do, and the former President was being consulted because of his own distinct perspective, and...

Justice Souter: Well, maybe the exemption shouldn't have been recognized in that situation, then.

Mr. Stewart: Well, I think the... certainly Congress over the years has revisited, has amended the FOIA in various respects.

It's not...

Justice Ginsburg: But you are asking for a stretch even beyond that, because this... the adversary nature of the tribes' interests versus the water users' interests.

Mr. Stewart: I mean, I think we are not... I think we're not asking for a stretch, because the United States in its capacity as trustee, and in particular the Bureau of Indian Affairs, owes a duty of loyalty to the tribes, and certainly Federal policy for most of the 20th Century has been to exercise the trusteeship in a way that will promote values of tribal self-determination, so if the United States as trustee...

Justice Ginsburg: What I mean is, that's a new element that wasn't... it's not like the paid consultant who's substituting for an employee, it's not like the Senate that's representing the U.S. Government, and it's not like the President.

You are asking for something that no other case is like.

Mr. Stewart: I would agree that the tribes' potential financial interest in the outcome of the decision, the various decisionmaking processes is unlike interests that have been recognized in the past, but again the United States is supposed to act as the trustee.

One of the central duties of a trustee in virtually every context is to preserve a duty of confidentiality to the beneficiary, and so it would be strange to say that the tribe's status as a beneficiary, the tribe's interest in the trust corpus, is the very thing that causes its submissions to lose the confidentiality that they might otherwise have.

Justice Stevens: It's not completely clear that that confidentiality is also a defense to discovery in litigation.

Mr. Stewart: I mean, certainly in litigation the particular needs of an individual requestor would be relevant in a way that they would not be relevant under the FOIA, so I think your question... the premise of your question is correct in two different respects.

First, the fact that these are in our view interagency documents doesn't automatically mean that they would even satisfy the second part of the FOIA test.

Second, even if they satisfied the second part of the FOIA test in the sense that they would not be routinely discoverable, that wouldn't by itself eliminate the possibility that they could be discovered by a litigant with a particular need.

If I may, I'd like to reserve the remainder of my time.

Argument of Andrew M. Hitchings

Chief Justice Rehnquist: Very well, Mr. Stewart.

Mr. Hitchings, we'll hear from you.

Mr. Hitchings: Mr. Chief Justice, and may it please the Court:

FOIA exemption 5 does not apply to communications between the Government and outside nonagency parties when the communications concern the Government's allocation of a valuable right or benefit among these nonagency parties.

This rule does not change due to the existence of a trustee-beneficiary relationship between the Government and the nonagency party, a relationship that itself does not give rise to a civil discovery privilege.

As we heard in the discussion preceding this, this Court's decisions and Congress itself have consistently recognized that the dominant purpose of FOIA is disclosure, not secrecy, and that FOIA exemptions must be narrowly construed.

Justice Breyer: If an ordinary person has a trustee... in fact, any one of millions of Americans indeed do have a trustee they have to give confidential... they give confidential documents to, it would be privileged in litigation, like attorney-client work privilege.

There's no way for adversaries to get those documents, is there?

Mr. Hitchings: In the context of civil litigation there is not a recognized...

Justice Breyer: So if you're an Indian, however, a member of an Indian tribe, you do exactly the same thing because your Government happens to be the trustee, opponents in litigation could get it, so the court privileges would be useless to them.

I mean, insofar as they have to give documents to their trustees, all the court privileges would be useless.

I'm not saying that means you'd lose, but I want to be sure that's the consequence.

Mr. Hitchings: Well, the consequence should be looked at within the context of...

Justice Breyer: But that is the consequence.

Mr. Hitchings: The consequence, yes, I will agree with that.

Justice Breyer: All right.

If that's the consequence, then what I'm looking for is, it seems an undesirable consequence, and therefore I wonder if their status isn't unique enough to analogize them to consultants.

That's basically... I mean, it's like nothing else.

The Indian tribe relationship is totally unique, and there's a choice of analogies, and I agree with you that it's a stretch of the language, but consultants is a stretch of the language, so shouldn't we try to see if that can't be done in order to prevent the consequence that I just described?

Mr. Hitchings: Well, I think when you are in a situation, granted the Indian tribes are unique, and they've been recognized that way throughout history, but in the same instance, in Nevada v. U.S., this Court's decision in that case did recognize the unique nature that the Government has to deal with, competing interests within water rights adjudications, and while the relationship that the Government and Interior may have with project water, irrigation water users may not approach that of a trustee, certainly Nevada said that the Government is obligated to undertake substantial obligations on their behalf.

And when you're talking about the Government making decisions regarding these competing interests, and it's not just the interests of the irrigation interests and of the tribes, it's also competing Federal interests for other federally reserved water rights, one thing that...

Justice Breyer: It didn't seem to me that's what would be relevant to the questions that I'm asking, or necessarily to the holding of the case.

That is, if we held they're not within the agency exception, they are not within it, and therefore whatever documents they give to the trustee, whether it happened to be your situation or any other situation in the world, would be absolutely... other people would get them.

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, if they don't fall within this.

Now, that's what's worrying me.

Mr. Hitchings: Well, I think that one of the potential off-ramps to that is that there may be other FOIA exemptions that would apply in other cases.

For the purposes of FOIA exemption 5 our position is that it does not where you have the Government allocating a valuable privilege amongst competing nonagency parties.

Justice Scalia: Mr. Hitchings, I guess you believe that the moral is you should never pick a trustee who enacts a Freedom of Information Act.

Unidentified Justice: [Laughter]

Mr. Hitchings: I don't know if that's quite the moral of the story, but it's... certainly the...

Justice Breyer: But I'm not sure the Indians had a choice.

I mean, the Congress...

Justice Scalia: Alternative moral, if you are a trustee you should not enact a Freedom of Information Act.

Mr. Hitchings: Well, I think one of the other points regarding Your Honor's question was, what other circumstances may apply.

I think in many circumstances it is going to be the Government competing, or balancing, or allocating amongst a number of competing interests, but there certainly may be circumstances where Indian tribes will communicate with BIA or Interior, and the Government is not in this position where they actually are balancing...

Justice Breyer: Is there any way to work with that, because I would normally think, you know, that people get sued, and tribes get sued like any other entity for millions of things, accidents, contracts, who knows?

I mean, there are 30 million lawsuits, or I don't know, 10 million anyway, and in each of those lawsuits they would be unable to use the privileges that are given to every other litigant if they turned over documents, as they normally would in the course of business, to their trustee.

Now, is... you say, well this is a special situation as described.

Is there any way to work with that that it could make a difference?

Mr. Hitchings: I think the rule that I articulated in the first sentence here is that FOIA exemption 5 does not apply to communications between the Government and outside nonagency parties when the communications concern the Government's allocation of a valuable benefit or privilege amongst those interested nonagency parties.

Chief Justice Rehnquist: Don't the tribes generally, in matters of contract or tort, refer to... they have their own attorneys, don't they?

Mr. Hitchings: They do, and they have their own attorneys in this circumstance too, both in the Klamath project operations plan as well as in the adjudication.

Justice Ginsburg: Mr. Hitchings, I think that Mr. Stewart said that this case, if we got past interagency, would be on the deliberative process.

Nobody is claiming in this case that the United States has an attorney-client relationship that would bring forth a privilege.

I think that Mr. Stewart agreed with that, so if we... if exemption 5 applied at all, we would be looking to the deliberative process privilege but not to attorney-client or work product, is that right?

Mr. Hitchings: Well, in this case the Government has asserted the deliberative process privilege protects all seven documents that remain in dispute.

They have also asserted that the attorney work product privilege protects two of those seven, and that's an additional basis for withholding those documents within the rubric of FOIA exemption 5, and those two documents for which the attorney-client privilege was claimed... I'm sorry, the attorney work product privilege was claimed, one of them specifically discusses the Klamath project operations plan, one of them specifically discusses the adjudication.

So there is somewhat of a mix in the privileges that have been claimed here, but it is true that the primary thrust of the Government's argument in this case has been that all of the documents are protected by the deliberative process privilege within FOIA exemption 5.

Justice Kennedy: If the Government cannot prevail under section 5, are there as to these two documents as to which work product was... will the work product privilege protect those independently of section 5?

Mr. Hitchings: Our position is that it does not, and it's because they do not... for the same reasons that it does not work within the deliberative process analysis it does not work within the attorney work product analysis either.

They do not have a common goal, a common defense or prosecution against a common adversary here.

The Government again, Interior itself has many obligations and many competing interests.

Justice Kennedy: In fact, they may even be adverse to each other in certain respects, I guess.

Mr. Hitchings: Correct and, in fact, as far as the Klamath project operations plan, there are a number of interests that the tribes are adverse to the Government on, as well as in the adjudication, too, and the adjudication contests were filed in May of this year, where the tribes themselves have filed contests to claims filed on behalf of the Fish & Wildlife Service for wildlife refuges up there.

That's within the Department of Interior.

The same is the case for the Bureau of Reclamation's claims that have been filed.

The same is the case for the Klamath project operations claim.

The tribes contest the manner in which the project is operated if the Government is operating in a manner to benefit project irrigation users, perhaps wildlife refuges, whatever the other Federal interests may be in that case.

One of the points that was brought up by the Solicitor General's argument was this alternative test of what the role of the document might play, and our position has been throughout this that that would pretty much bring within the purview of FOIA exemption 5 any document that is submitted to the Government.

If the Government was able to withhold a document based upon its affidavit of the role that document played within its discussion, that would include just about anything, and it would provide the opportunity for Federal agencies to cloak all types of discussions based upon that type of assertion.

Justice Breyer: Well, now I don't understand that.

I thought that in order to work, 5, you have to satisfy two things.

First, you don't even get there unless it's interagency, and if you are there, it's still not protected unless you can assert a privilege that you could assert in a litigation.

Am I wrong about that?

Mr. Hitchings: That's correct, there are those two tests to that.

Justice Breyer: All right, so in other words, the only things that you... the only... if it applies, it only creates privacy in respect to the following things, those things that, independently, litigation privilege creates privacy for.

Now, am I right about that, or not?

Mr. Hitchings: Correct.

You would need to satisfy that threshold test of whether it is inter or intraagency and then meet the secondary test, which is whether it is normally privileged within the civil discovery context.

Justice Breyer: That's... you see, that's why I'm worried, because we're only talking about things that would otherwise be privileged, and now they lose that privilege.

I'm just repeating myself, but I'm explaining why I'm worried to try to get from you something that will make me less worried.

Mr. Hitchings: Well, I understand that, the worry that is caused by that, but again, I think there may be other circumstances where other FOIA exemptions may apply.

It may be that in other circumstances that FOIA exemption 4 could apply, because it's a commercial privilege that is... or involves commercial information, or financial information that is otherwise privileged and confidential.

In fact, amici in support of the petitioner in this case brought that very point up, so there may be circumstances where the Government could assert other FOIA privileges.

Justice Breyer: Medical records, are medical records privileged under FOIA?

Mr. Hitchings: That would be within unwarranted invasion of personal privacy, perhaps, or one of the other exemptions...

Justice Scalia: I think they're specifically mentioned in that provision, medical records and other... whose disclosure would constitute an unwarranted invasion of privacy, but that provision letters that would not be available, memorandums or letters which would not be available by law to a party other than an agency in litigation, that isn't... that goes well beyond just attorney-client material, doesn't it?

I mean, I thought that was a fairly expansive provision, and if it were not routinely available in litigation, it benefits from that.

Mr. Hitchings: Correct.

There are other examples, and it is the discovery privilege that have been historically noted, and those would be attorney-client, attorney work product, deliberative process, if there are specific, maybe psycho... psychiatrist-patient, doctor-patient, those types of discovery privileges, but in this case there is no recognized trustee-beneficiary privilege.

There has not been recognized within... there has not been one recognized within the civil discovery context, and FOIA is not a means to create a new civil discovery privilege.

This Court's decision in Weber Aircraft explicitly stated that, and that's cited in our brief.

Chief Justice Rehnquist: So you say that the petitioner would ultimately lose, even though satisfying the interagency requirement, because of the routinely available of discovery product.

Mr. Hitchings: Our position is that the Government simply cannot meet that threshold intraagency test here, because you have a circumstance where they are not serving as a neutral outside, objective consultant.

They are... in this case the tribes are an interested party.

The Government is allocating a valuable benefit or privilege amongst not only that interested party but many others, including other Federal interests, and our position is that test just simply is not met here because of those circumstances.

Now, granted, there are circumstances where you do have a paid outside consultant that is providing information to the agency because it may be outside of that agency's expertise, but the paid consultant has no direct interest in the decision that the Government is making for which those correspondence are provided, and that's clearly distinguishable from this case.

Justice Breyer: Suppose that we thought... I may be taking it out of context, but Justice Scalia once wrote that that's exemption... said something about including any agency document that is part of the deliberative process.

Just taking that phrase, suppose it was possible to read section 5 in that way, would your documents come into that, too, not the ones you want, but your own submissions?

Mr. Hitchings: From the Klamath water users, members themselves?

Justice O'Connor: Yes.

Yes.

Justice Scalia: Yes.

Mr. Hitchings: I don't think so.

We're not asking for that.

Granted, we would love to have the opportunity to have secret communications with Interior on the decisions that we're making here, but we recognize that FOIA exemption 5 just is not read that broadly, and should not be read that broadly, and I think in Justice Scalia's dissent, I believe that was in the Julian case, he specifically stated that it talks about a consultant in a governmentally conferred capacity, and that seems to indicate that you're talking about the traditional relationship where you have a consultant that's paid by the Government to give it expert advice.

Justice Scalia: I wasn't dissenting on this point.

I just had to reach this point because of my dissent, whereas the majority didn't have to reach it, so...

Mr. Hitchings: Correct.

In that case...

Justice Scalia: The Court hasn't really addressed it...

Mr. Hitchings: Right, exactly.

In that case, the... whether the documents were intraagency was not raised below and was not part of the majority's opinion.

If the Court has nothing further, that would conclude my statement.

Rebuttal of Malcolm L. Stewart

Chief Justice Rehnquist: Thank you, Mr. Hitchings.

Mr. Stewart, you have 2 minutes remaining.

Mr. Stewart: I'd like to address the question of the role of the Government in allocating a scarce benefit, and particularly with regard to the Oregon general stream adjudication.

I think as the Court is certainly aware, the way that a priority system of water rights works is the most senior water user gets whatever rights it's entitled to, and then if there's water remaining the next most senior, and so forth down the line, and the position of the United States in the Oregon adjudication, and a position which was upheld by the Ninth Circuit in Adair, is that the tribes have a priority date earlier than that of the Klamath project.

And there are questions remaining as to the quantification of that right, but when the United States presents claims on behalf of the tribe, if the United States believed that the tribes was entitled to a certain amount of water but nevertheless asserted claims for a lesser amount in order that more should be left over for the project, we would be breaching our fiduciary duty to the tribes.

Justice Breyer: The more difficult question, if you want to take 30 seconds, is how do you get the tribe beneficiary into interagency even if you couldn't get consultants in there?

Mr. Stewart: Again, we think that the ultimate question should be whether the Government has solicited... in this case whether the Government has solicited input from a person technically outside the four walls of the Government based on a distinct perspective which is particularly useful to the Government, and an analogy...

Justice Souter: Why doesn't that cover the water users association, distinct perspective, technical, why not?

Mr. Stewart: It's not the same sort of relationship between the Government and the water users that exists between the Government and the tribe.

That is, the...

Justice Scalia: You're arguing for a trustee exception, basically, just...

Mr. Stewart: Certainly we are arguing that the trust relationship is, we would say is one example of a broader principle.

Another analogy would be to our representation of current and former Federal employees in Bivens suits, where the Federal employee obviously has a personal stake in the outcome of the litigation.

Justice Souter: Attorney-client.

Mr. Stewart: But the attorney-client privilege would kick in only if the threshold language of interagency or intraagency were satisfied, so certainly with respect to former employees I think the necessary implication of the opponents' test is, no matter how privileged the communications were, they would nevertheless be disclosable under FOIA because they could not be characterized as interagency or intraagency documents.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Stewart.

The case is submitted.