Supreme Court: Federal officials can’t shield tribal documents

Tuesday, March 6, 2001

  • High court to wade back into secondary-effects debate

    The Supreme Court reaffirmed the vitality of the Freedom of Information Act yesterday, ruling unanimously in favor of public disclosure of correspondence between Indian tribes and the Interior Department.

    The tribes and the government had urged the high court to regard the correspondence as “intra-agency memorandums” of the type that can be withheld from public view under Exemption 5 of the FOIA. In this context, the government said, the tribe was like a government consultant whose communications could be kept confidential.

    But the court refused, ruling that the tribal documents were not meant to be excluded from view under the law.

    The decision came in the case Department of the Interior v. Klamath Water Users Protective Association. The case arose when the association invoked the FOIA to seek release of documents relating to a dispute over water rights in the Klamath River Basin in Oregon and California.

    Justice David Souter wrote for the majority: “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 … There is simply no support for the exemption in the statutory text, which we have elsewhere insisted to be read strictly in order to serve FOIA’s mandate of broad disclosure.”

    The tribes and the government had worried that a ruling requiring disclosure of the documents would destroy the confidential relationship tribes have with the Bureau of Indian Affairs in the Interior Department. Several tribes filed briefs noting the federal government’s role as trustee for their land and natural resources. The candor necessary to maintain that relationship would be lost if the documents were public, they said.

    Souter expressed sympathy for the tribes, stating that “the department is surely right in saying that confidentiality in communications with tribes is conducive to a proper discharge of its trust obligations.” But he said the language of the exemptions under the FOIA simply could not be stretched to cover the documents at issue. Souter also noted that more than 20 years ago, Congress considered amending the FOIA to protect Indian trust information, but took no action.

    During oral arguments in the case in January, it seemed clear that most justices were skeptical of reading Exemption 5 broadly enough to include the tribal documents. But the court’s unanimity yesterday was surprising, especially since the lower court ruling that the justices upheld came from the 9th U.S. Circuit Court of Appeals. The 9th Circuit, with its liberal reputation, is more often reversed — not upheld — by the high court’s conservative majority.

    FOIA advocates applauded the decision, asserting it would benefit the public as well as the news media, which often use the FOIA to obtain government documents.

    “This is a victory for reporters who cover Native American tribes,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “Water rights are such a vital part of the culture of the Pacific Northwest and it is necessary for the public to know how the government makes its decisions.”

    She also said the decision would be useful beyond the specific case involving tribal documents because Souter’s language made it clear that all FOIA exemptions

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