High court examines tribal-records confidentiality in FOIA case

Thursday, January 11, 2001

The Supreme Court appeared reluctant yesterday to grant the
government’s request to interpret the Freedom of Information Act in a way that
would keep more “inter-agency” documents out of the public’s

Oral arguments in U.S. Department of the
Interior v. Klamath Water Users Protective Association
seemed to
point toward a victory for public disclosure from a court that does not always
take a broad view of the FOIA.

At issue are documents prepared by the Klamath Indian Tribes of Oregon
and submitted to the Interior Department in connection with the development of
a long-range plan for use of water from the Klamath River. The tribes had some
control over the river basin, in the form of treaty rights to hunt and to

A water users group sought release of the documents under the FOIA,
but the government refused. Officials cited Exemption 5 of the law, which
allows government agencies to withhold “inter-agency or intra-agency”
memoranda. Officials also said release of the documents would weaken the
trustee relationship the government has with Indian tribes.

More than 50 tribes filed a friend-of-the-court brief supporting the
government’s position and expressing concern over the release of other
sensitive documents about tribal matters. Press organizations, including the
Reporters Committee for Freedom of the Press and the Society of Professional
Journalists, urged the court to construe the law narrowly and to force the
government to reveal the Klamath tribe memoranda.

“The public has a strong interest in the Department of the
Interior’s water allocation decisions, in the influence various outside and
competing interests bring to bear on the decision-making process, and in how
the government responds to that influence,” the news media groups told the
court in a brief.

During yesterday’s arguments, the high court, whose conservative
majority is often reluctant to stray beyond a statute’s wording, seemed
concerned that Exemption 5 does not expressly protect tribal documents from

“The tribe is not an agency,” Justice Sandra Day O’Connor
told government lawyer Malcolm Stewart. “So it is literally not

Justice Antonin Scalia added, “It seems like a stretch.”

Stewart acknowledged that the tribes are not government agencies. But
he said that in the past, the exemption has been interpreted to shield
documents prepared by outside individuals and groups that are acting as
consultants to the government.

“The circle begins and ends with the government,” he

Andrew Hitchings, representing the water users group, argued second
and asserted that the exemption does not cover the documents in question.

“The dominant purpose of the FOIA is disclosure, not
secrecy,” he said.

Justice Stephen Breyer expressed some concern about the excessive
release of tribal documents, but other justices seemed supportive of the water
users’ view.

Hitchings seemed confident in the strength of his case, ending his
arguments after only 15 minutes, leaving 15 minutes unused. Few lawyers sit
down early, but justices say they are glad when lawyers do not use up all their

A decision in the case could come anytime before the end of the
court’s term this June or July.