The Ninth Circuit held that documents submitted by Klamath River Basin Indian Tribes (Tribes) to the Bureau of Indian Affairs (BIA) as a constituent agency of the Department of the Interior (DOI) were not exempt from release under the Freedom of Information Act (FOIA).[1] The court found that although the Department requested that the Tribes submit these documents and that they were submitted as part of consultation in an administrative proceeding, the documents were not exempt from release under FOIA section 552(b)(5).[2]

In 1995, DOI's Bureau of Reclamation (Reclamation) announced the initiation of the Klamath Project Operation Plan (KPOP). KPOP was to be the Bureau's long-term plan for the operation of the Klamath Project (Project), a federal reclamation project in Southern Oregon. Both the Klamath Water Users Protective Association (Association) and the Tribes receive water from the Project. To facilitate the development of the KPOP, the Tribes formed an agreement with the Department under which the Tribes would advise the Department regarding the fulfillment of the Department's trust obligations. While this agreement was in effect, the Department filed claims on behalf of the Tribes in an Oregon water rights adjudication process. This adjudication was to apportion water rights in the State of Oregon, including both the Tribes' and the Association's rights in the Klamath River Basin. Although this process was ongoing during the KPOP development, the adjudication operated separately from the development of the KPOP.

In 1996, the Association submitted several FOIA requests for the release of documents relating to discussions of Klamath River Basin water resources exchanged between the Tribes and BIA during the development of the KPOP. The Association sought documents that would reveal the extent of the discussion of the water rights adjudication process that had occurred between the Tribes and BIA outside of the public process. In response to the Association's original request, the Department released some of the requested communications but withheld others. To obtain the unreleased documents, the Association filed an action in the Oregon District Court.[3] Although the Department released documents sporadically after the Association filed its claim, seven documents remained at issue when the district court heard the case. The district court found that the documents had "played a role in the agency's deliberations with regard to the current water rights adjudication" and that they there were exempt from release as "inter-agency or intra-agency memorandums or letters . . . ."[4]

On appeal, the Ninth Circuit reversed the district court decision, and held that the documents submitted to BIA did not meet the inter agency/intra agency exemption test, and therefore were not exempt from disclosure under FOIA. Because of the "unique nature" of FOIA claims, a two-step process is used for the standard of review.[5] Under Minier v. Central Intelligence Agency,[6] a court first examines whether the district court had an "adequate factual basis" upon which to formulate its opinion; if this basis exists, the court then reviews the applicability of the FOIA exemption de novo.[7] Here, the court found that an adequate factual basis existed and proceeded de novo.

FOIA's primary objective is the disclosure of documents. Therefore, informational requests under FOIA should generally be granted unless the documents sought fall under one of the exemptions listed in section 552(b).[8] The Department argued that because the Tribes were acting as consultants in the KPOP process, and because the Department had requested the information from the Tribes, the communications were exempt from disclosure as inter agency/intra agency communications under section 552(b)(5). The Department asserted that under Formaldehyde Institute v. Department of Health, [9] a "functional test" should be used to evaluate the applicability of the exemption to each situation. Under this test, the important consideration is the role that "'the document plays in the process of agency deliberations.'"[10] In applying the functional test in Ryan v. Department of Justice,[11] the D.C. Circuit found that a document solicited by an agency and submitted by an outside party for use in agency deliberations constitutes inter agency or intra agency memoranda exempt from release under section 552(b)(5).[12] In the present case, the Ninth Circuit departed from both the focus of the functional test and the holding in Ryan to conclude that the Tribes' "direct interest in the subject matter of their consultations" precluded any exemption of their communications with the Department from disclosure.[13]

The Ninth Circuit had previously held that documents submitted to an agency by an external party as part of an administrative process were not exempt as inter agency memoranda.[14] The Department distinguished this precedent by asserting that in this case, it had requested the disputed documents from the Tribes. The court found this distinction unpersuasive and reiterated that the Tribes' interest in their discussions with the Department was the determinative factor in this case. Because the Tribes had the opportunity to advance their interests in the communications with the Department, exemption of these discussions from disclosure would effectively extend the protection of section 552(b)(5) to ex parte communications in a contested proceeding. Although the Tribes and the Association were not engaged in traditional litigation, the water rights adjudication was a contested matter related to the Department. Accordingly, undisclosed discourse between the Tribes and the Department was impermissible. The court acknowledged that although the Department had a duty to protect the interests of the tribe, it could "not afford them greater rights than they would have under the regulatory scheme" in this manner.[15] Based on these conclusions, the court held the documents did not meet the functional test of the inter agency/intra agency exemption, and they were subject to disclosure.