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Providence Journal v. United States

Case Date: 12/17/1992
Court: United States Court of Appeals
Docket No: 92-1166

December 17, 1992 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ ____________________ No. 92-1166 No. 92-1166 PROVIDENCE JOURNAL COMPANY PROVIDENCE JOURNAL COMPANY AND GERALD M. CARBONE, AND GERALD M. CARBONE, Plaintiffs, Appellees, Plaintiffs, Appellees, v. v. UNITED STATES DEPARTMENT OF THE ARMY, UNITED STATES DEPARTMENT OF THE ARMY, Defendant, Appellant. Defendant, Appellant. ____________________ ____________________ ERRATA SHEET ERRATA SHEET The opinion of this Court issued on December 8, 1992, is ammended as follows: On cover under list of counsel "John S. Koppel, Assistant United States Attorney", should be corrected to read "John S. Koppel, Attorney, Civil Division, United States Department of Justice". December 8, 1992 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ ____________________ No. 92-1166 No. 92-1166 PROVIDENCE JOURNAL COMPANY PROVIDENCE JOURNAL COMPANY AND GERALD M. CARBONE, AND GERALD M. CARBONE, Plaintiffs, Appellees, Plaintiffs, Appellees, v. v. UNITED STATES DEPARTMENT OF THE ARMY, UNITED STATES DEPARTMENT OF THE ARMY, Defendant, Appellant. Defendant, Appellant. ____________________ ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND FOR THE DISTRICT OF RHODE ISLAND [Hon. Raymond J. Pettine, Senior U.S. District Judge] [Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________ ____________________ ____________________ Before Before Cyr, Circuit Judge, Cyr, Circuit Judge, _____________ Roney,* Senior Circuit Judge, Roney,* Senior Circuit Judge, ____________________ and Boudin, Circuit Judge. and Boudin, Circuit Judge. _____________ ____________________ ____________________ John S. Koppel, Attorney, Civil Division, United States John S. Koppel, Attorney, Civil Division, United States _________________ Department of Justice, with whom Lincoln C. Almond, United States Department of Justice, with whom Lincoln C. Almond, United States __________________ Attorney, Stuart M. Gerson, Assistant United States Attorney General, Attorney, Stuart M. Gerson, Assistant United States Attorney General, ________________ Leonard Schaitman, Lt. Col. Richard D. Rosen and Major Patrick W. Leonard Schaitman, Lt. Col. Richard D. Rosen and Major Patrick W. __________________ ___________________________ _________________ Lisowski were on brief for appellant. Lisowski were on brief for appellant. ________ Joseph V. Cavanagh, Jr. with whom Michael DiBiase, Karen A. Joseph V. Cavanagh, Jr. with whom Michael DiBiase, Karen A. _________________________ _______________ _________ Pelczarski and Blish & Cavanagh were on brief for appellees. Pelczarski and Blish & Cavanagh were on brief for appellees. __________ ________________ ____________________ ____________________ ____________________ ____________________ *Of the Eleventh Circuit, sitting by designation. *Of the Eleventh Circuit, sitting by designation. CYR, Circuit Judge. This appeal is taken from a CYR, Circuit Judge. ______________ district court judgment directing the United States Department of the Army ("Army") to disclose to the Providence Journal Company ("Journal"), pursuant to a Freedom of Information Act ("FOIA") request, numerous documents relating to an internal criminal investigation into allegations against six officers of the Rhode Island National Guard ("RING"). The Army contends that the documents are protected from compelled disclosure under three FOIA exemptions. I I BACKGROUND BACKGROUND __________ During 1988, the Office of the Inspector General of the Army ("IG") received four anonymous letters implicating six RING officers in alleged misconduct punishable either by internal disciplinary action or by court-martial under the Uniform Code of Military Justice. See 10 U.S.C. 801-946 (1985 & Supp. 1992). ___ The Army Vice Chief of Staff ("VCOS") directed the IG to investi- gate the charges against two "senior" officers and to submit a report to the Army officer ("Army command") invested with the authority to determine whether either disciplinary action or court-martial was warranted. The allegations against the four junior officers were referred to the National Guard Bureau. In order to foster cooperation and curb possible fears of reprisal or harassment, the IG's office, which has no subpoena 2 power, promises confidentiality as to both witness identity and statement content "to the maximum extent possible, particularly when it is specifically requested." Department of Army Regulation ("DAR") 20-1, 1-15a. The IG interviewed _ twenty-seven witnesses in the course of the investigation. Three witnesses waived their right to confidentiality. In December 1989, the IG submitted a report ("IG Report"), which was "approved" by the Army VCOS. Army regulations provide that "approval" of an IG report does not connote official Army adoption of its findings or recommendations. DAR 20-1, 3-1c. _ The record reveals no further Army action on the IG Report. In due course, the Journal and one of its reporters filed an FOIA request for "all documents pertaining to the Inspector General's investigation of the Rhode Island National Guard." See 5 U.S.C. 552 (1990). The Army released a redacted ___ version of the IG Report, withholding several exhibits in reliance on four FOIA exemptions. See id. 552(b)(5) ___ ___ (exemption for predecisional intra-agency memoranda), (6), (7)(C) (exemptions to safeguard against unwarranted invasions of privacy), and (7)(D) (exemption for information provided by a "confidential source"). Following an unsuccessful administrative appeal to the Army General Counsel, the Journal filed suit in the United States District Court for the District of Rhode Island to compel disclosure of the unredacted documents pursuant to 5 U.S.C. 552(a)(4)(B). The parties filed cross-motions for summary judgment. The district court directed the Army to submit 3 a so-called Vaughn Index, see Vaughn v. Rosen, 484 F.2d 820, 824 ______ ___ ______ _____ (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), which lists ____ ______ the precise grounds for the Army's exemption claims with respect to each redaction or withheld document, as follows: A. IG Report 1 Identity of the six RING officers who were targets of the investigation [Exemptions 6 & 7(C)]; 2,6 IG's conclusions as to whether each allegation was substantiated or unsubstantiated [Exemption 5]; 3,5 IG's synopsis of each allegation and findings of fact [Exemptions 5 & 7(D)]; 4 Statements provided by confidential and non-confidential witnesses [Exemptions 5 & 7(D)]; 7 IG's final recommendations regarding further disciplinary action [Exemption 5]; B. Full transcript of statement by Nonconfidential source [Exemptions 5 & 7(D)]; C-E. Internal memoranda and directives between Army VCOS and IG's Office [Exemptions 6, 7(C) & 7(D)]; F-I. Four anonymous letters [Exemptions 6, 7(C) & 7(D)]; J. Travel vouchers [Exemptions 6, 7(C) & 7(D)].1 Following an in camera inspection of the unredacted documents, __ ______ ____________________ 1Throughout the opinion, relevant portions of the IG Report and exhibits are identified by reference to their Vaughn Index numbers. The Army did not appeal from the order to disclose, in their entirety, Vaughn Index B and J. See Providence Journal Co. ___ ______________________ v. Department of Army, 781 F. Supp. 878, 888-92 (D. R.I. 1991) __________________ (Appendix A). 4 the district court granted partial summary judgment and directed the Army to release the entire IG Report, excepting only the names (and other identifying information) of the confidential _____ sources (Vaughn Index A3, A4, A5) and the various intra-agency memoranda (Vaughn Index C-E).2 II II DISCUSSION DISCUSSION __________ The FOIA was designed to expose the operations of federal agencies to public scrutiny without endangering efficient administration, as a means of deterring the development and application of a body of "secret law." See Department of Air ___ __________________ Force v. Rose, 425 U.S. 352, 360-61 (1976);3 NLRB v. Sears, _____ ____ ____ ______ Roebuck & Co., 421 U.S. 132, 153 (1975). As the FOIA presumes ______________ public entitlement to agency information, an agency which would withhold information must establish its right to an FOIA exemption. See 5 U.S.C. 552(a) (4)(B). The district court ___ must make a de novo determination as to the validity of the __ ____ agency's exemption claim. See Department of Justice v. Reporters ___ _____________________ _________ Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). FOIA _______________________________ exemptions are construed narrowly, Department of Justice v. ________ ______________________ Julian, 486 U.S. 1, 8 (1988); Curran v. Department of Justice, ______ ______ _____________________ ____________________ 2The Journal does not challenge the district court ruling relating to Vaughn Index C-E. 3Throughout the opinion, all citation references to agencies or departments are to United States agencies or departments, unless otherwise indicated. 5 813 F.2d 473, 473-74 (1st Cir. 1987), and any "[d]oubts are customarily to be resolved in favor of openness." Irons v. FBI, _____ ___ 811 F.2d 681, 685 (1st Cir. 1987) [hereinafter "Irons I"]. _______ A. Exemption 5 A. Exemption 5 ___________ With respect to the IG Report's "subjective" evaluation of the evidence against the two senior RING officers, as well as the IG's recommendations to the Army VCOS, the Army asserts a claim under Exemption 5 which prohibits compelled disclosure of "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). Agency documents which would not be obtainable by a private litigant in an action against the agency under normal discovery rules (e.g., ____ attorney-client, work-product, executive privilege) are protected from disclosure under Exemption 5. United States v. Weber ______________ _____ Aircraft Corp., 465 U.S. 792, 799 (1984); EPA v. Mink, 410 U.S. _______________ ___ ____ 73, 86 (1973). The Army relies on the executive or "deliberative process" privilege, see, e.g., id. at 85-86 (1973) (national ___ ____ ___ security memo on nuclear testing prepared for President), which is designed to safeguard and promote agency decisionmaking processes in at least three ways: [I]t serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they 6 have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, ________________________ ____________________ 866 (D.C. Cir. 1980); see also Schell v. Department of Health and ___ ____ ______ ________________________ Human Servs., 843 F.2d 933, 939 (6th Cir. 1988). After _____________ considering any potential impact public disclosure might have on the employee-advisor, the agency decisionmaker, and the public, the court should construe Exemption 5 as narrowly as is "consistent with efficient Government operation." Mink, 410 U.S. ____ at 89 (citation omitted). Normally, a document will qualify for protection under Exemption 5 if it is both "predecisional" and "deliberative." See Dow Jones & Co. v. Department of Justice, ___ ________________ _____________________ 908 F.2d 1006, 1008-09 (D.C. Cir. 1990). 1. "Predecisional Document" Test 1. "Predecisional Document" Test ____________________________ A document will be considered "predecisional" if the agency can (i) pinpoint the specific agency decision to which the document correlates, Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. _______ ___ 1983), (ii) establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision, Renegotiation Bd. v. Grumman Aircraft Eng'g __________________ ______________________ Corp., 421 U.S. 168, 184 (1975); Hopkins v. Department of Hous. _____ _______ ____________________ and Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991); Coastal States, _______________ ______________ 617 F.2d at 866, and (iii) verify that the document "precedes, in temporal sequence, the 'decision' to which it relates." Senate ______ 7 of Puerto Rico v. Department of Justice, 823 F.2d 574, 585 (D.C. ______________ _____________________ Cir. 1987). The Journal concedes that the Army VCOS ordered the IG to conduct the preliminary criminal investigation and that Army command, not the IG, is the final decisionmaker as to whether there is to be any further disciplinary or prosecutorial action against the RING officers. See Rules for Court-Martial ___ 306(a) ("Each commander has discretion to dispose of offenses. . . ."); Hopkins, 929 F.2d at 85 (document "predecisional" if its _______ author "lacked any authority to take final agency action"). Thus, the IG Report would be a predecisional document. The Journal argues nonetheless that Army command implicitly adopted the IG Report by its apparent failure to take any action within a reasonable time after issuance, thereby ______ _ __________ ____ disentitling the IG's recommendations to "predecisional" status under Exemption 5. The Journal contends that its "implied adop- tion" theory is necessary to prevent an agency's use of its own inaction as an absolute shield from compelled FOIA disclosure of ________ the results of any internal investigation.4 The "implied adoption" theory is neither supported by ____________________ 4The Journal suggests also that the Army's earlier "approval" of the IG Report, coupled with the apparent inaction, signified official Army "adoption" of the IG Report. Army Regulations provide, however, that "[w]hen an IG report is approved, conclusions and recommendations contained in the report do not constitute the directing authority's decision nor an explanation of the decision unless specifically adopted as such in writing by the directing authority." DAR 20-1, 3-1c __ _______ _ (emphasis added); cf. Niemeier v. Watergate Special Prosecution ___ ________ ______________________________ Force, 565 F.2d 967, 973 (7th Cir. 1977) (adoption requires _____ something more than mere quotation, such as an affirmative manifestation that the predecisional document's conclusions are deemed "consistent" with final agency decision). 8 the plain language of Exemption 5 nor the related caselaw,5 and would disserve the recognized aims of Exemption 5. Express adoption of a predecisional document is a prerequisite to an agency waiver under Exemption 5. See, e.g., Sears, 421 U.S. at ___ ____ _____ 161 (agency must "expressly . . . adopt or incorporate [predeci- _________ sional document] by reference" in final decision); Ahearn v. ______ United States Army Materials & Mechanics Research Ctr., 580 F. ________________________________________________________ Supp. 1405, 1407 (D. Mass. 1984) (same). Courts consistently have refused to infer agency adoption based on mere agency inaction. See, e.g., Brinton v. Department of State, 636 F.2d ___ ____ _______ ____________________ 600, 605 (D.C. Cir. 1980) (age or length of retention of predecisional document irrelevant to question of agency "adop- tion"), cert. denied, 452 U.S. 905 (1981); Ashley v. Department ____________ ______ __________ of Labor, 589 F. Supp. 901, 908 (D. D.C. 1983) (no implied ________ adoption "even if a disputed document is several years old . . . [and] has not yet produced a[n] [anticipated] final decision").6 ____________________ 5The one decision cited in support of the theory, Washington __________ Post Co. v. Department of Air Force, 617 F. Supp. 602, 605 (D. ________ ________________________ D.C. 1985), is inapposite, as it involved an express agency _______ adoption of an IG report. 6The Army argues that the Journal cannot assert its "implied adoption" claim because it failed to request disclosure of documents describing any final agency action following "approval" of the IG Report. In our view, however, the initial Journal request, which sought "all documents pertaining to the Inspector General's investigation of the Rhode Island National Guard," was broad enough to include any such written record of final action by the Army, if one exists. See McGehee v. CIA, 697 F.2d 1095, ___ _______ ___ 1102-03 (D.C. Cir. 1983) (once agency responds fully to FOIA requests, no continuing duty to disclose documents generated later; in general, prior to full compliance, there is an ongoing _____ __ ____ __________ obligation to update disclosure). For present purposes, we assume that no document evidencing final Army action has yet issued. 9 The proposed "implied adoption" rule would undermine Exemption 5 by inhibiting the free exchange of views within an agency. Agency advisors responding to supervisory directives might be less forthcoming with their advice lest their recommendations be exposed to public scrutiny in the event final agency action is not promptly taken. See Access Reports v. ___ _______________ Department of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991) ("At ______________________ the time of writing the author could not know whether the decisionmaking process would lead to a clear decision, establishing the privilege, or fizzle, defeating it. Hedging his bets, he would be drawn into precisely the caution . . . that the exemption seeks to render unnecessary."); Schell, 843 F.2d at 941 ______ (same).7 Especially is this true where, as here, one viable agency option is to take no final "action" on the IG's recommendations. See Rules for Court-Martial 306(c)(1) ("A ___ commander may decide to take no action on an offense. If charges have been preferred, they may be dismissed."). Accordingly, we decline to depart from the established view that an agency may meet its burden of proof under the "pre- decisional document" test by demonstrating that the preparer was not the final decisionmaker and that the contents confirm that the document was originated to facilitate an identifiable final agency decision. See Mobil Oil Corp. v. EPA, 879 F.2d 698, 703 ___ ________________ ___ ____________________ 7In contrast, express agency adoption represents a significant vindication of a subordinate advisor's recommenda- tion, posing little risk of retaliation or public embarrassment. See, e.g., Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1204 ___ ____ ______________________ ___ (D.C. Cir. 1991); see also Washington Post, 617 F. Supp. at 605. ___ ____ _______________ 10 (9th Cir. 1989) (agency asserting Exemption 5 claim need not demonstrate differences between contents of deliberative document and final agency decision). 11 2. "Deliberative Document" Test 2. "Deliberative Document" Test ___________________________ A "predecisional" document may still not "fall within the confines of Exemption 5 if it is not part of the 'deliberative process.'" Formaldehyde Inst. v. Department of __________________ ______________ Health and Human Servs., 889 F.2d 1118, 1121 (D.C. 1989); see ________________________ ___ also Access Reports, 926 F.2d at 1195 (document must "reflect[] ____ ______________ the give-and-take of the consultative process") (citation omitted). The Army asserts that two features of the IG Report contributed to the deliberative process: (1) Vaughn Index A2, A6 and A7, conveying the IG's views as to whether the allegations were substantiated, as well as the IG's recommendations relating to any appropriate agency action, and (2) Vaughn Index A3 and A5, which include the IG's findings of fact and summaries in support of the IG's recommendations. The district court ruled that: the [IG's] investigatory report was not a deliberative policy-making document. The investigation concerned factual allegations against high-ranking officials. This is not agency policy in the same vein as Mink, ____ supra, where reports were prepared for the _____ President on the advisability of underground nuclear testing. If the [IG] report concerned broader issues if it was a report of general recommendations on disciplining superior officers the situation would be different. However, this report is factually specific; _________ ________ it does not reflect "agency give-and-take of the deliberative process by which the decision itself is made." Providence Journal v. Department of Army, 781 F. Supp. 878, 885 __________________ ___________________ 12 (D. R.I. 1991) (citing Weber Aircraft, 465 U.S. 792 (1984); _______________ Cooper v. Department of Navy, 558 F.2d 274 (5th Cir. 1977)) ______ ___________________ (emphasis added) (other citations omitted). A predecisional document will qualify as "deliberative" provided it (i) formed an essential link in a specified consulta- tive process, (ii) "reflect[s] the personal opinions of the writer rather than the policy of the agency," and (iii) if released, would "inaccurately reflect or prematurely disclose the views of the agency." National Wildlife Fed'n v. Forest Serv., _______________________ ____________ 861 F.2d 1114, 1118-19 (9th Cir. 1988); see also Safecard Servs., ___ ____ ________________ Inc. v. SEC, 926 F.2d 1197, 1204 (D.C. Cir. 1991) (agency must ____ ___ show the decisional "context" of the document within the process used to reach determinations "like those in issue"); cf. Senate ___ ______ of Puerto Rico, 823 F.2d at 585-86 (agency bears burden of _______________ establishing "what deliberative process is involved, and the role played by the documents in the course of that process") (citation omitted). Even where expressions of personal opinion generally render a document "deliberative," however, segregable factual portions of the document might still be subject to compelled disclosure if, for example, they are not so "inextricably intertwined" with the deliberative material that their disclosure would compromise the private remainder of the documents. See ___ Mink, 410 U.S. at 92. ____ a. "Consultative Process" a. "Consultative Process" ____________________ We find no authority for the suggested distinction 13 between "reports of general recommendations on disciplining superior officers" and "factual" reports prepared in the course of internal disciplinary investigations against particular indi- viduals. See, e.g., Renegotiation Bd., 421 U.S. at 184 (agency ___ ____ _________________ deliberations preceding adjudicative decision involving specified persons implicate Exemption 5); National Wildlife, 861 F.2d at _________________ 1118 (Exemption 5 not limited to consultations over official "policy"); Brockway v. Department of Air Force, 518 F.2d 1184, ________ ________________________ 1192 (8th Cir. 1975) (Exemption 5 extends beyond "policy" memoranda to include all documents not discoverable in litigation _________ ___ ____________ __ __________ with agency); see also, e.g., Swisher v. Department of Air Force, ____ ______ ___ ____ ____ _______ _______________________ 495 F. Supp. 337 (W.D. Mo. 1980), aff'd, 660 F.2d 369 (8th Cir. _____ 1981) (IG Report constitutes "deliberative" document); American ________ Fed'n of Gov't Employees v. Department of Army, 441 F. Supp. 1308 ________________________ __________________ (D. D.C. 1977) (same). Rather, the appropriate judicial inquiry is whether the agency document was prepared to facilitate and inform a final decision or deliberative function entrusted to the agency. See, e.g., Russell v. Department of Air Force, 682 F.2d ___ ____ _______ _______________________ 1045, 1046-48 (D.C. Cir. 1982) (editorial review process used by Office of Air Force History to prepare historical document on use of Agent Orange during Vietnam war constitutes deliberative agency function). As Army command controls the agency decision whether Army personnel are to be disciplined for alleged misconduct, or prosecuted under the Uniform Code of Military Justice for alleged criminal activity, its deliberative task is no less an agency 14 function than the formulation or promulgation of agency disciplinary policy. As with other discretionary prosecutorial decisions, many considerations contribute to the final determination by Army command, including the rank of the investi- gated officers, the seriousness of the allegations, the overall reliability of the evidence, the relative appropriateness of the available forms of remediation, and any special mitigating circumstances. Cf. Senate of Puerto Rico, 823 F.2d at 585 n.38 ___ _____________________ ("[T]he process leading to a decision to initiate, or forego, prosecution is squarely within the scope of the privilege . . . ."). It is not surprising, therefore, that the Army has in place a confidential consultative process to ensure maximum input from the chain of command concerning the need for further action. See Russell, 682 F.2d at 1048 (agency has "much at stake" in ___ _______ "candid consideration" where it must be prepared to "stand by its [final decision] in the public forum, and in light of the possi- bility of . . . litigation . . . perhaps in the judicial forum as well"). b. "Essential" to Consultative Process b. "Essential" to Consultative Process __________________________________ Neither can we agree that the primary function of the IG Report was to convey raw evidence or data discovered during the investigation and that the IG's recommendations were peripheral or gratuitous. Schell, 843 F.2d at 940 (court must ______ determine whether document was "essential" or merely a "peripheral item which just 'beefs up' a position with cumulative 15 materials") (citation omitted). We think it is clear that the recommendations made by the IG the agency official with the investigative expertise and the greatest familiarity with the first-hand evidence are highly important to Army command even though it is not obligated in the final analysis to credit the IG's recommendations. See, e.g., Hopkins, 929 F.2d at 85 (HUD ___ ____ _______ inspector reports contain "recommendations to higher officials that various agency actions should be taken."); Formaldehyde, 889 ____________ F.2d at 1125 (reliance on temporary consultants' opinion often necessary); Schell, 843 F.2d at 942 ("It is the free flow of ______ advice, rather than the value of any particular piece of informa- tion, that Exemption 5 seeks to protect."). We cannot say that the IG's recommendations were in any sense either merely cumulative or peripheral. We conclude, at a minimum, therefore, that a significant portion of the IG Report (Vaughn Index A2, A6, and A7) was "essential" to the consultative process within the agency. c. Premature Disclosure of IG's "Personal Opinions" c. Premature Disclosure of IG's "Personal Opinions" _______________________________________________ Nor is the chilling effect on candid advice from agency subordinates, which Exemption 5 was designed to mitigate, significantly diminished merely by reason of the fact that the subordinates' recommendations relate to the appropriateness of disciplinary action against particular individuals. A subordinate agency advisor may have more cause for concern about ____ public disclosure of disciplinary recommendations involving high- 16 level agency officials, since there may be a real or perceived risk of retaliation from a vindictive official who is the target of the advisor's findings or recommendations. Cf. Cooper, 558 ___ ______ F.2d at 277 ("[S]ervice people are human, too: they fear disciplinary action, work and hope for promotion, possess loyalties and ties of friendship to people and organizations, [and] dislike speculating to the derogation of others' reputations . . . ."). Army command is not required to accept the IG's recom- mendations. Indeed, command already may have exercised its prerogative to take no further action on these allegations, for reasons entirely unrelated to the grounds espoused in the IG Report. Accordingly, since public release of the recommendatory sections in the IG Report would either "inaccurately reflect or prematurely disclose the views of the agency," the Army may not be required to reveal any information referenced in Vaughn Index A2, A6, or A7.8 ____________________ 8None of the cases relied on by the Journal, or by the district court, supports a contrary result. Weber Aircraft, 465 ______________ U.S. at 796 (Air Force waived Exemption 5 claim by voluntarily ___________ releasing entire record of collateral investigation of air ______ crash); Playboy Enters., Inc. v. Department of Justice, 677 F.2d _____________________ ______________________ 931, 935 (D.C. Cir. 1982) (plaintiff sought disclosure of contents of witness statements only, but did not "'wish to probe the process whereby the task force assigned reliability or weight to specific evidence'"); Cooper, 558 F.2d at 279 (Navy investiga- ______ tive report of helicopter crash, which was primarily "fact- oriented," with the expression of an opinion "incidental," not entitled to blanket exemption; on remand, however, district court _______ __ ______ must scrutinize each section of report to determine if its disclosure would "safeguard the consultative or decision-making process"); Brockway, 518 F.2d at 1185 (plaintiff sought only ________ witness statements concerning air crash (not findings of fact)); Project on Military Procurement v. Department of Navy, 710 F. ________________________________ ___________________ 17 d. "Inextricably Intertwined" Fact-Oriented Material d. "Inextricably Intertwined" Fact-Oriented Material ________________________________________________ The Army contends that Vaughn Index A3 and A5, conveying the IG's conclusions as to the facts revealed by the evidence discovered during the investigation, should be exempt because the conclusions are so "inextricably intertwined" with the IG's mental processes that their disclosure necessarily would reveal the substance of the IG's recommendations. See, e.g., ___ ____ Quarles v. Department of Navy, 893 F.2d 390, 392-93 (D.C. Cir. _______ __________________ 1990) (cost estimates derive from "complex set of judgments" by preparers); Russell, 682 F.2d at 1048 (historical facts _______ essentially "interpretive" choices by reviewer); Swisher, 495 F. _______ ____________________ Supp. 362, 367 (D. D.C. 1989) (plaintiff entitled to waiver of fee on FOIA request; court does not reach merits of Navy's potential Exemption 5 claim, nor plaintiff's entitlement to disclosure); Washington Post Co., 617 F. Supp. at 605-07 (Air ____________________ Force "waived" right to prevent disclosure of most fact-oriented portions of document either by express adoption of related _______ ________ recommendatory sections or by voluntary disclosure of summaries _________ __________ of more detailed fact-oriented sections; government failed to meet burden by providing "empirical support" that remaining fact- oriented sections were "inextricably intertwined" with exempted ________ deliberative material). Adams v. United States, 686 F. Supp. 417 (S.D.N.Y. 1988), is _____ _____________ the only case the Journal cites which is at all apposite. However, Adams stands on a mistaken premise. The Adams court _____ _____ held that the IG's findings of fact were irrelevant to the deliberative process because the commanding officer was free to disregard the findings in making the final disciplinary decision, and that Exemption 5 applies "only insofar as [] disclosure might tend to expose the decisionmaker's deliberative process." Id. at _______________ ___ 419-20 (citation omitted) (emphasis in original). Exemption 5 protects the deliberative process, which necessarily involves at _______ least two parties: the advisor and the decisionmaker. The fact that the decisionmaker may choose to disregard the IG's advisory findings does not alter the fact that (1) the IG, who had first- hand exposure to the witnesses and the evidence, is in the optimum position to make informed findings of fact; and (2) an informed final decision requires the IG's candid assessment of witness demeanor and credibility. 18 Supp. at 340 (IG's investigative conclusions exempt); American ________ Fed'n, 441 F. Supp. at 1313 (IG's preliminary conclusions "play _____ an integral part in the consultative process"). The district court held that the IG's evidentiary conclusions and rationale are not exempt from disclosure since "[t]he mere act of selecting facts for inclusion in a report does not make that report deliberative," and "[s]imple judgment exercised in preparing the Report of Investigation does not equal deliberation." Providence __________ Journal, 781 F. Supp. at 885.9 _______ The Exemption 5 analysis employs a rough-hewn dichotomy between opinion and fact: whereas the purely recommendatory provisions in a deliberative predecisional document are exempt from compelled disclosure, "memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context would _________ ____ ___ _______ generally be available for discovery . . . ." Mink, 410 U.S. at ____ 87-88 (emphasis added); see also Hopkins, 929 F.2d at 85; ___ ____ _______ Russell, 682 F.2d at 1048; Mead Data Cent., Inc. v. Department of _______ _____________________ _____________ Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977). As the dichotomy _________ between opinion and fact is not clear-cut, courts generally follow a "functional" approach in an attempt to determine ____________________ 9Even though the Army raised the issue before the district court, see Providence Journal, 781 F. Supp. at 889 (Appendix A), ___ __________________ on appeal it apparently disclaims any contention that Vaughn Index A4, objectively recounting the contents of the statements provided by the 27 solicited sources, is entitled to protection from FOIA disclosure under Exemption 5. See Playboy Enters., 677 ___ _______________ F.2d at 935 (mere selection of facts for inclusion in report not "deliberative"). 19 "whether production of the contested document [or section] would be 'injurious to the consultative functions of government . . . .'" Mink, 410 U.S. at 87 (citing Kaiser Aluminum & Chem. ____ ________________________ Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl. 1958)). _____ _____________ Even when requested material is found to be factual, the courts have held it exempt where they were convinced that disclosure "would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Quarles, 893 F.2d at 392 (citation omitted); see also Access _______ ___ ____ ______ Reports, 926 F.2d at 1195 (central inquiry is whether disclosure _______ would "discourage candid discussion within the agency.") (citation omitted); Formaldehyde, 889 F.2d at 1123 (opinion-fact ____________ distinction is subordinate to inquiry concerning "effect of the materials' release" on deliberative process). Factual material should be considered segregable if it is not so "inextricably intertwined" with the deliberative material that its disclosure would "compromise the confidentiality of deliberative information that is entitled to protection." Mink, 410 U.S. at 92; see ____ ___ Hopkins, 929 F.2d at 85. _______ While mere selection of the evidence deemed material to ________ an agency decision may not implicate Exemption 5,10 disclosure ____________________ 10In some cases, a predecisional distillation of material facts from a larger public record may reveal the final decision- maker's mental processes by enabling public scrutiny of the information not relied on in arriving at the final agency ___ decision. See, e.g., Russell, 682 F.2d at 1049 (comparison with ___ ____ _______ final agency action would reveal what the agency thought were insignificant preliminary findings of fact); Montrose Chemical _________________ 20 of the IG's findings of fact necessarily would reveal the opinion of the IG on the credibility and probity of the evidence relating to each allegation. Findings of fact arrived at in the personnel management context reflect a significant degree of subjectivity. Our review of these Vaughn-indexed documents discloses instances of conflicting and inconsistent witness statements. The findings of fact in the IG Report necessarily were premised on an assessment and resolution of the relative credibility of these statements, as well as subjective judgments as to the probity of other evidence developed during the investigation. Cf. Playboy ___ _______ Enters., Inc. v. Department of Justice, 677 F.2d 931, 935 (D.C. _____________ ______________________ Cir. 1982) (plaintiff did not "wish to probe the process whereby the task force assigned reliability or weight to specific evidence"). Revelation of the IG's findings of fact undoubtedly would divulge the substance of the related recommendatory sections with which they comport.11 Accordingly, as we conclude that the recommendatory provisions in the IG Report are exempt from disclosure, the Army cannot be compelled to disclose the IG's findings of fact in Vaughn Index A3 and A5. ____________________ Corp. v. Train, 491 F.2d 63, 67-68 (D.C. Cir. 1974) (same). But _____ _____ absent any documentation evidencing a final agency decision, we need not address this issue. 11For instance, disclosure of a finding that a high-ranking officer did or did not engage in particular conduct reveals the IG's judgment as to whether the allegation was substantiated by the evidence. Were such findings subject to compelled disclosure in these circumstances, forthright findings of fact by agency subordinates, based on disputed evidence, would be harder to come by. See American Fed'n, 441 F. Supp. at 1313 (chilling effects ___ ______________ of prospective disclosure are greatest in the case of an internal criminal investigation of agency personnel). ________ 21 B. Exemption 7(D) B. Exemption 7(D) ______________ The Army claims that the statements provided by twenty- eight (twenty-four solicited witnesses and four anonymous infor- mants) of its thirty-one sources (Vaughn Index A4, F-I) are nonetheless protected under Exemption 7(D), which shields from compelled disclosure records and information compiled for law enforcement purposes, but only to the extent that the[ir] __ ___ ______ production . . . could reasonably be expected to disclose the ________ ___ identity of a confidential source12 . . . ________ __ _ ____________ ______ and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation . . . information furnished by ___________ _________ __ a confidential source. (Emphasis added.) _ ____________ ______ Exemption 7 was intended to avert the "drying-up" of sources of information necessary to conduct criminal investiga- tions. Irons v. FBI, 880 F.2d 1446, 1450-51 (1st Cir. 1989) _____ ___ [hereinafter "Irons II"]. An agency claiming the right to _________ decline disclosure on the basis of Exemption 7(D) must demon- strate that the particular document was compiled for "law enforcement purposes" from information provided by a "confidential source." See Curran, 813 F.2d at 473-74 (unlike ___ ______ certain other FOIA exemptions, once both elements of a 7(D) exemption are established, the court should not engage in a ___ ____________________ 12The Journal seeks disclosure of the contents of the state- ments only, not the witnesses' identities. 22 balancing of interests); Brant Constr. Co. v. EPA, 778 F.2d 1258, _________________ ___ 1262-63 (7th Cir. 1985) (same). The Journal challenges only the "confidentiality" of the Army's sources.13 Document confidentiality depends not on the contents but on the terms and circumstances under which the information was acquired by the agency. See Irons I, 811 F.2d at 685; ___ ________ Johnson v. Department of Justice, 739 F.2d 1514, 1517 (10th Cir. _______ _____________________ 1984); see also Irons II, 880 F.2d at 1448 ("confidential" does ___ ____ _________ not mean "secret" information, but information "provided in con- fidence"). A confidential source is one who "'provide[s] information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.'" Id. at 1447 (quoting S. Rep. No. 1200, 93d Cong., 2d ___ Sess. 13 (1974)) (citation omitted). We discuss the two types of source statements requested by the Journal: (1) solicited state- ments from confidential sources (Vaughn Index A4), and (2) ____________________ 13The Journal does not dispute that the requested documents satisfy the threshold criterion under Exemption 7(D), namely that the records were compiled by a criminal law enforcement authority in the course of a criminal investigation. See Curran, 813 F.2d