ELR Citation: ELR 20061
No(s). 97-36208 (9th Cir. Aug 31, 1999)

The court reverses a district court decision that documents submitted by Native American tribes at the request of the U.S. Department of the Interior (DOI) in the course of consultation over ongoing proceedings involving water rights and allocations affecting the tribes' interests are exempt under the Freedom of Information Act (FOIA) as interagency or intraagency memoranda or letters. The court first holds that documents submitted to an agency by persons outside the government as part of an administrative proceeding are not internal agency documents exempt from disclosure. It is irrelevant that DOI requested the advice of the tribes because consultation with tribes is not the same as the advice from staff assistants and the exchange of ideas among agency personnel. Additionally, the matters with respect to which DOI sought advice were matters in which the tribes had their own interest and the communications presumptively served that interest. Therefore, the court concludes that even taking an expansive view of the interagency, intraagency exemption under FOIA. the documents given by the tribes to DOI do not qualify for exemption

A dissenting judge would hold that the documents provided by the tribes to DOI are exempt from FOIA discovery based on an examination of the role the documents play in the agency's decisionmaking process, and not the identity of their producer.

Counsel for Plaintiff
Andrew M. Hitchings
DeCuir & Somach
400 Capitol Mall, Ste. 1900, Sacramento CA 95814
(916) 446-7979

Counsel for Defendants
Matthew M. Collette
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Kleinfeld, J., with Hawkins, J., dissenting