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, 2001--Decided March 5, 2001
Held: The documents at issue are not exempt from FOIA's
disclosure requirements as "inter-agency or intra-agency
memorandums or letters." Pp. 4-14.
(a) Consistent with FOIA's goal
of broad disclosure, its exemptions have been consistently given a narrow
Department of Justice v. Tax Analysts, 492 U. S. 136, 151. Pp. 4-5.
(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 "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. 5-8.
(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 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 FOIA's mandate of broad disclosure. Pp. 8-14.
189 F. 3d 1034, affirmed.
Souter, J., delivered the opinion for a unanimous Court.
DEPARTMENT OF THE INTERIOR AND BUREAU
OF INDIAN AFFAIRS, PETITIONERS v. KLAMATH
WATER USERS PROTECTIVE ASSOCIATION
on writ of certiorari to the united states court of
appeals for the ninth circuit
[March 5, 2001]
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 letters" that would normally be
privileged in civil discovery. 5 U. S. C. §552(b)(5). We hold they are not.
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 Native 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, however, 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 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
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.
The District Court granted the
Government's motion for summary judgment. It held that each document qualified
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 F. 3d, at 1036, App. to Pet. for Cert. 31a-32a, 56a-65a.
The Court of Appeals for the
Ninth Circuit reversed. 189 F. 3d 1034 (CA9 1999). It recognized that some
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.
Upon request, FOIA mandates disclosure
of records held by a federal agency, see 5 U. S. C. §552, unless the
within enumerated exemptions, see §552(b). "[T]hese 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
Exemption 5 protects from disclosure
"inter-agency or intra-agency memorandums or letters which would not be
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.
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 work-product 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 themselves 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
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
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 United States 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
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
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 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.
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 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 intra-agency
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
As to those documents bearing
on the Plan, the Tribes are obviously in competition with nontribal claimants,
irrigators represented by the respondent. App. 66-71. 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 F. 3d, at 1035.
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 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 acknowledgement 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 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 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
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 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., at 3 (1965)). "Congress believed that this philosophy, put into practice, would help `ensure an informed citizenry,
vital to the functioning of a democratic society.' " Ibid. (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.
The Government is "not technically acting as [the
Tribes'] attorney. That is, the Tribes have their own attorneys, but the
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.
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.
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).
Courts of Appeals have recognized at least two instances
of intra-agency 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 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.
The Department points out that the Plan-related
documents submitted by the Tribes were furnished to the Bureau rather than
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.
We note that the Department cites the Restatement
for the proposition that a " `trustee is under a duty to the beneficiary
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 Petitioner 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.
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 Affairs, 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.