Washington Legal Foundation v. U.S. Sentencing Com'n

Page 897

89 F.3d 897

319 U.S.App.D.C. 256, 24 Media L. Rep. 2417

WASHINGTON LEGAL FOUNDATION, Appellant v. UNITED STATES SENTENCING COMMISSION, et al., Appellees.

No. 94-5334.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 5, 1995.

Decided July 30, 1996.

Appeal from the United States District Court for the District of Columbia (No. 93cv00986).

Paul D. Kamenar, argued the cause for appellant, with whom Daniel J. Popeo, was on the briefs.

Jennifer H. Zacks, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for appellees, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, and Mark B. Stern, Attorney, U.S. Department of Justice, were on the brief.

Before: BUCKLEY, GINSBURG, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

The Supreme Court has stated approvingly that "the courts of this country recognize a general right to inspect and copy public records and documents." Nixon v. Warner Comm., Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311-12, 55 L.Ed.2d 570 (1978). At least as it applies to the federal government, however, the reach of this common law right is far from clear. This case poses the question whether certain documents compiled or created by an advisory committee established by the United States Sentencing Commission are "public records" to which the public has a conditional right of access under the common law. With such guidance as we can glean from state common law and the few federal cases that have come before, we conclude that the documents are not public records.

I. Background

In early 1992 the Sentencing Commission established an Advisory Working Group on Environmental Sanctions made up of individuals from both the public and private sectors. The Advisory Group's mission was to develop and recommend to the Commission proposed sentencing guidelines.

Although some of the early meetings of the Advisory Group were open to the public, in June 1992 the group announced that until it completed a draft of its recommendations it would conduct its meetings in private. In March 1993 the Advisory Group released a draft report recommending a new set of sentencing guidelines for environmental offenses. The group solicited comments on the draft proposed guidelines at a public hearing in May 1993. Six months later the Advisory Group submitted final proposed guidelines to the Commission.

The Washington Legal Foundation, "a non-profit public interest law and policy center," had been an active participant in Commission hearings and proceedings on environmental sanctions for several years when the new Advisory Group decided to conduct its meetings in private. The WLF objected and, when it did not receive a satisfactory response, filed this suit in May 1993, alleging that both the Federal Advisory Committee Act, 5 U.S.C. app. 2, §§ 1-15, and federal common law confer upon the public a right of access to the Advisory Group's documents. In particular, the WLF sought access to such "internal documents and memoranda" as the Advisory Group developed or upon which it relied as it formulated its recommendations to the Commission. Washington Legal Found. v. United States Sentencing Comm'n, 826 F.Supp. 10, 13 (D.D.C.1993).

The district court entered a summary judgment for the defendants, holding that because the Advisory Group was "established" and "utilized" by the Sentencing Commission, see 5 U.S.C. app. 2, § 3(2)(C), which is not an "agency" under the Administrative Procedure Act, 5 U.S.C. § 551(1), the Advisory Group is not subject to the constraints of FACA. See 826 F.Supp. at 13-14. The court also concluded that the Advisory Group's documents are not "public records" subject to the common law right of access: "The documents ... are not part of a public proceeding, nor are they official records, nor are they a final report by the Advisory Group. Rather, they are the predecisional materials upon which a final recommendation to the Commission may develop." Id. at 14. The WLF appealed.

We affirmed the district court's holding that FACA does not apply to the Advisory Group. With respect to the federal common law claim, however, we held that the district court erred in deciding, "without knowing what documents the Advisory Group had in its possession," that they need not have been disclosed under the common law. Washington Legal Found. v. United States Sentencing Comm'n, 17 F.3d 1446, 1452 (D.C.Cir.1994) (WLF I). The way to determine whether the public has a right of access to a document, we explained, is to decide first "whether the document sought is a 'public record.' If the answer is yes, then the court should proceed to balance the government's interest in keeping the document secret against the public's interest in disclosure." Id. at 1451-52. This balancing should not be done in the abstract; the court should focus upon "the specific nature of the governmental and public interests as they relate to the document itself, as well as the general public interest in the openness of governmental processes." Id. at 1452.

Although the district court "appeared confident from the nature of the Advisory Group and the terms of WLF's document request that none of the requested materials would be subject to public access under the common law," we were not so sure, "knowing no more than the general categories of documents named by WLF, that none of these are [sic] public records that could survive the applicable balancing test." Id. Accordingly we remanded the case to the district court with the following instruction:

The court should assess separately each category of documents requested to determine whether part or all of that category might be composed of public records. If there is any legitimate question as to any or all of the categories, then the court should order a Vaughn index [see Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973) ] to evaluate the individual documents within these categories. For any and all documents determined to be public records, the court should then balance the government's interest in secrecy against the public's interest in disclosure with reference to the contents of the particular documents at issue (as reflected in the Vaughn index) to determine whether WLF has a common law right of access to those documents.

On remand, the Government argued for the first time that this suit is barred by sovereign immunity. The WLF responded that 28 U.S.C. § 1361, which gives the district courts jurisdiction over mandamus suits, also waives sovereign immunity therefrom, and, in the alternative, that the ultra vires exception of Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), applies in this case. The district court, recognizing that sovereign immunity is a jurisdictional defect that may be raised at any time, held (in an unpublished memorandum) that "sovereign immunity is not a bar to suits under the mandamus statute seeking to require the performance of a legal duty owed to the Plaintiff." Because the jurisdictional inquiry therefore merges with the main issue in the case--whether the Advisory Group has a legal duty to provide public access to the requested documents--the district court proceeded to consider the merits of the case, as follows.

The district court apparently determined that there was after all "a legitimate question as to any or all of the categories" of documents in suit, for it did order a Vaughn index, in which the Sentencing Commission itemized more than 700 documents divided into six categories. One of the six consists of public comments on the draft guidelines, which comments the Commission and the Advisory Group have made available to the public. The five categories still at issue in this case consist of (1) personal notes, memoranda, and correspondence on policy matters; (2) preliminary drafts of guideline proposals; (3) copyrighted scholarly research; (4) memoranda prepared at the request of the Advisory Group and materials from other organizations; and (5) letters or memoranda on administrative matters internal to the Advisory Group.

The district court concluded that none of the documents in any of these categories is a "public record" subject to the common law right of access. The court's opinion proceeds from the premise, which it made express but upon which it did not elaborate, that as a matter of federal common law the only documents to which the right of access applies are those "akin to court documents." Here, the court found:

[T]he documents sought by the WLF memorialize the decision making process the Advisory Group undertook in creating the draft of the recommended sentencing guidelines that the Advisory Group ultimately produced for public comment. Consequently, they are not "public records" as argued by the WLF. More importantly, if these type [sic] of deliberative memorials were subject to the common law right, then arguably jury deliberations, private conferences of judges, law clerk notes, and rough drafts of opinions would likewise be subject to the rule. The obvious overriding concerns of maintaining the integrity of the decisional processes and promoting frank discussions and exchanges of ideas precludes such a result in this case.

In the present appeal the WLF contends that the common law right of access applies to a broad range of records, not merely to the records of judicial proceedings and similar documents. Moreover, the WLF argues, in deciding that the Advisory Group's documents are not public records, the district court improperly took into account the Government's concern about confidentiality, thereby conflating the two successive inquiries prescribed by this court in WLF I. Finally the WLF contends that the district court's decision rests upon erroneous factual findings; that is, even if the court had been correct in thinking...