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11/17/89 Formaldehyde Institute v. Department of Health and

November 17, 1989





On Appeal from the Judgment of the United States District Court for the District of Columbia, Civil Action No. 87-3266.


Mikva, Edwards and Williams, Circuit Judges. Opinion for the Court filed by Circuit Judge Edwards.


At issue in this case is a three-page document with accompanying cover letter (the "Review Letter") containing the comments of two referees for the American Journal of Epidemiology ("Journal"). The Review Letter reviewed a report ("Report") that a staff member of the Centers for Disease Control had submitted for possible publication in the Journal. The Formaldehyde Institute ("Institute") requested a copy of the Review Letter from the Department of Health and Human Services . HHS, acting on behalf of its constituent member CDC, refused, invoking "Exemption 5" of the Freedom of Information Act , which protects certain "inter-agency or intra-agency memorandums or letters" from disclosure. See 5 U.S.C. § 552(b)(5) (1988). The Institute brought an action in the District Court to secure release of the Review Letter under FOIA; on cross-motions for summary judgment, the trial court granted the Institute's request to compel HHS to release the document. See Formaldehyde Inst. v. HHS, Civ. Action No. 87-3266 (D.D.C. Sept. 6, 1988), reprinted in Joint Appendix 44 (Order). HHS now appeals to this court.

The law speaks clearly on this issue. An agency may withhold a document under Exemption 5 when it is both predecisional and deliberative. The Review Letter is predecisional because it preceded the agency's decision whether and in what form to publish the Report. The letter is part of HHS' deliberative process because the agency secured review commentary in order to make that decision. Releasing materials that satisfy these Exemption 5 criteria could seriously hamper the efforts of CDC to fulfill its clear Congressional mandate to conduct and publish scientific research for the public benefit. Because the District Court erred in granting summary judgment for the Institute, we reverse. The case will be remanded to the trial court for entry of summary judgment in favor of HHS. I. BACKGROUND

In the course of his official duties as a staff researcher at HHS, Leslie Stayner submitted the Report to the Journal to be considered for publication. The Report, "A Retrospective Cohort Mortality Study of Workers Exposed to Formaldehyde in the Garment Industry," contains information about the harmful effects of formaldehyde on certain classes of workers. Pursuant to its normal review process, the Journal sent the Report to outside referees. In light of the reviews that were received, the Journal decided not to publish Stayner's report. The reviews constituting the Review Letter were then sent to Stayner and CDC along with the decision not to publish.

On June 1, 1987, the Institute, invoking FOIA, requested copies of all agency records of contact between Stayner, members of the National Institute for Occupational Safety and Health , another of the constituent organizations of HHS (the third of which is the Public Health Service ), and the Journal, related to "publication or rejection" of the Report. See J.A. 21 (Institute letter). On July 2, 1987, HHS wrote back to the Institute stating that it was withholding the information based on Exemption 5. HHS subsequently denied the Institute's administrative appeal of July 14, 1987, stating that the Journal was "functionally equivalent to agency staff and thus the Journal's recommendations to agency decisionmakers should be protected." Again the agency relied principally on the authority of Exemption 5 in withholding disclosure of the Review Letter. See J.A. 25 (HHS letter).

The Institute seeks the Review Letter in order to use it to challenge the findings of the Report, which, subsequent to the Journal's rejection, was published in some form in another journal. See Brief for Appellee at 10 n. 5 (citing report published in 13 American Journal of Industrial Medicine 667 (1988)); id. at 18 (noting that "the Institute has submitted extensive criticisms of the [Report]" to several government agencies). The Journal has a policy, designed to protect the integrity of the review process, of declining to release such letters to the public. See Comstock Declaration para. 5, reprinted in J.A. 37.

In an order and memorandum opinion filed on September 6, 1988, the District Court granted summary judgment in favor of the Institute. See Formaldehyde, slip op. at 1-6, reprinted in J.A. 39-44. The trial judge acknowledged that the Institute's claim presented a "very close case," in part because HHS had "shown that the receipt of comments [from outside referees] is an expected result of the submission of an article for publication." Id. at 3, reprinted in J.A. 41 (citing HHS declarants). Nevertheless, the trial judge reasoned that Exemption 5 did not protect the Review Letter because the Journal was neither part of HHS nor an outside consultant:

The Department did not retain or commission the [Journal] or the reviewers it selected as an outside consultant to give advice on matters of policy. Instead, the [Journal] acted as an independent publisher. The [Journal] selected individuals to review an article submitted for publication, determined that the article should not be published in that journal, and returned the reviewers' comments to the author. Critically, the comments were generated as part of the [Journal's] internal process of review, and not as part of the Department's consultative process. The [Journal] solicited the comments to help it decide whether or not to publish the article. The fact that the [Journal] intended those comments to be confidential did not transform the [Journal] into the functional equivalent of an arm of the Department.

Id. at 3-4, reprinted in J.A. 41-42. In compelling disclosure of the Review Letter, however, the trial court allowed HHS to withhold the names of the reviewers in order to guard against any "possible chilling effect" on the review process. See id. at 4, reprinted in J.A. 42. *fn1 This appeal followed. II. ANALYSIS

A. Applicable Exemption 5 Criteria

Under Exemption 5, an agency *fn2 may withhold 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." 5 U.S.C. § 552(b)(5) (1988). Courts have "construed this exemption to encompass the protections traditionally afforded certain documents pursuant to evidentiary privileges in the civil discovery context," including "'materials which would be protected under the attorney-client privilege, the attorney work-product privilege, or the executive "deliberative process privilege."'" Taxation With Representation v. IRS, 207 U.S. App. D.C. 331, 646 F.2d 666, 676 (D.C.Cir. 1981) (quoting Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 862 (D.C.Cir. 1980)) (citations omitted); ...

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