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May 15, 1981

DEPARTMENT OF ENERGY and James B. Edwards, Secretary, Defendants

The opinion of the court was delivered by: MUNSON


Presently before the Court is a motion by defendant Department of Energy (DOE) to quash the subpoena of plaintiff Mobil Oil Corporation (Mobil), which seeks the production of a study commissioned by the DOE, and an accompanying intra-agency memorandum. Mobil has identified these documents as follows:

1. Contractors Report: Validation of Crude Oil Entitlements Information System; prepared by Transportation Energy Research Associates; dated March 9, 1981 (two volumes); and,
2. Memorandum to Al Linden from Charles Smith (referencing the above study), undated.

 The DOE seeks to quash Mobil's subpoena on the grounds that the documents demanded thereunder are protected from release by the pre-decisional executive privilege, and that the documents are irrelevant to the instant proceedings. Mobil counters that the disputed documents are not properly the subject of executive privilege because the DOE has failed to satisfy the strict procedural requirements for assertion of the privilege, or demonstrate that the documents contain the type of information that may properly be withheld under executive privilege. Furthermore, Mobil asserts that even assuming that the disputed documents do contain privileged information, Mobil's need for the information outweighs whatever value that would accrue to the DOE in preserving its confidentiality. On May 11, 1981, the Court ordered the DOE to submit the "Validation" study for in camera inspection. Having completed this inspection, and upon consideration of the arguments of the parties and the applicable law, the Court concludes that the "Validation" study must be released by the DOE to Mobil. The accompanying agency memorandum, however, would appear to be protected from release by executive privilege. The reasons for these decisions follow.

 Among the evidentiary privileges traditionally recognized by the courts is a subcategory of the executive or governmental privilege, which is termed the pre-decisional privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975). Under this privilege the government may properly withhold documents requested by its adversaries during discovery, that reflect " "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.' " Id. at 150, 95 S. Ct. at 1516. The purpose of this privilege is to encourage frank discussion of ideas and policies. Typically such exchanges would be inhibited were the participants to expect that their remarks would be disseminated publicly. Id. See also Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C.Cir.1980). Thus, by protecting from disclosure the ebb and flow of the deliberative process, the pre-decisional privilege seeks to ensure the quality of governmental decisionmaking. NLRB v. Sears, Roebuck & Co., supra 421 U.S. at pp. 150-51, 95 S. Ct. at p. 1516.

 At the same time, courts have held that the pre-decisional privilege is limited and, for example, would not include "purely factual material," even if such material is contained in "deliberative memoranda." EPA v. Mink, 410 U.S. 73, 87-88, 91, 93 S. Ct. 827, 836, 838, 35 L. Ed. 2d 119 (1973); Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th Cir. 1980); Vaughn v. Rosen, 173 U.S. App. D.C. 187, 523 F.2d 1136, 1145 (D.C.Cir.1975); In re Franklin Nat. Bank Securities Lit., 478 F. Supp. 577, 583-84 (E.D.N.Y.1979). In determining whether material is "purely factual" or deliberative, a court must have "an understanding of the function of the documents in issue in the context of the administrative process which generated them." N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 138, 95 S. Ct. 1504, 1510, 44 L. Ed. 2d 29 (1975). Moreover, the government has the burden of proof on the applicability of the pre-decisional privilege. Gulf Oil Corp. v. Schlesinger, 465 F. Supp. 913, 917 (E.D.Pa.1979).

 Courts have outlined specific procedures which must be followed by the government when invoking the pre-decisional privilege. First, the claim of the privilege must be lodged by the head of the agency which has control over the matter, after personal consideration of the allegedly privileged nature of the information. Coastal Corp. v. Duncan, 86 F.R.D. 514, 516-17 (D.Del.1980). This power to claim the privilege may be delegated by the head of the agency, but only to a subordinate with high authority. Nevertheless, before this properly may be done, the head of the agency must issue guidelines on the use of the privilege. These requirements are designed to guarantee both that the delegatee official has sufficient expertise in the agency's operations and functions, and will be able to render decisions on privileged information after reasoned judgment. The second procedural requirement is that a claim of privilege must specifically designate and describe the information that is purportedly privileged. And third, the agency must provide "precise and certain" reasons for preserving the confidentiality of the requested information. Id. at 517-19.

 After determining that an agency has rightfully asserted the pre-decisional privilege, and has satisfied the applicable procedures, a court may still rule that the privileged information must be released. This is because the pre-decisional privilege is not absolute, but is only a qualified right. In re Franklin Nat. Bank Securities Lit., 478 F. Supp. 577, 582 (E.D.N.Y.1979). Consequently, a court must weigh the competing interests militating for and against disclosure of the privileged information. For instance, though the deliberative process in governmental decision-making merits protection, against this consideration must be balanced the interest of the private litigant, the need for accurate judicial fact-finding, and even the public interest in learning how effectively the government is operating. Id. The court in In re Franklin also considered the following factors:

(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence, see, e.g., Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 331 (D.D.C.1966), aff'd on opinion below, 128 U.S. App. D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952, 88 S. Ct. 334, 19 L. Ed. 2d 361 (1967); (iii) the "seriousness" of the litigation and the issues involved, see, e.g., Freeman v. Seligson, 132 U.S.App.D.C. 56, 60, 405 F.2d 1326, 1340 (D.C.Cir.1968); (iv) the role of the government in the litigation, see, e.g., Carl Zeiss Stiftung, 40 F.R.D. at 329; Bank of Dearborn v. Saxon, 244 F. Supp. 394, 401-03 (E.D.Mich.1965), aff'd, 377 F.2d 496 (6th Cir. 1967); and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.

 Id. at 583.

 In the instant case, the Court does not believe that the government has sufficiently demonstrated that the "Validation" study is deliberative information within the ambit of the pre-decisional privilege. Aptly entitled "Validation of the Crude Oil Entitlements Information System," an abstract contained in the report describes its scope:

The objective of the study was to assess the ability of the (entitlements) system to provide appropriate and meaningful information of sufficient accuracy in relation to the requirements of the primary user(s). The study examined in detail the evolution and purpose of the system and the regulatory program it supports, the DOE processing of the information, the respondent reporting practices, as well as the uses of the data being collected. The principal focus of the study was, however, to quantitatively assess the quality of the data being collected, processed and used, and to identify and quantify the consequences and degree of data quality for the primary and other users of the data.

 The abstract goes on to describe the findings of the study, which are more appropriately left for ...

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