                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 97-3774
                                     ___________

State of Missouri, ex rel David A.     *
Shorr,                                 *
                                       *
             Plaintiff-Appellant,      * Appeal from the United States
                                       * District Court for the
      v.                               * Western District of Missouri.
                                       *
United States Army Corps of            *
Engineers,                             *
                                       *
             Defendant-Appellee.       *
                                  ___________

                          Submitted: May 12, 1998
                              Filed: June 18, 1998
                                  ___________

Before BEAM and MURPHY, Circuit Judges, and MELLOY,1 District Judge.
                            ___________

MURPHY, Circuit Judge.

      In this action the State of Missouri seeks disclosure of a document from the
United States Army Corps of Engineers (Corps) under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552. The district court2 granted summary judgment to the Corps

      1
        The Honorable Michael J. Melloy, Chief Judge, United States District Court
for the Northern District of Iowa, sitting by designation.
      2
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
on the ground that the document is exempt from disclosure under 5 U.S.C. § 552(b)(5).
Missouri appeals from the judgment, and we affirm.

       The Corps is in the process of updating the Missouri River Master Water Control
Manual to describe how the Corps intends to operate the Missouri River reservoirs and
preparing an environmental impact statement (EIS) in accordance with the National
Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347. As part of this process,
the Corps published a draft EIS endorsing a plan to aid the reproduction of a type of
fish known as the pallid sturgeon, an endangered species. The plan apparently could
also have the effect of reducing the amount of water available to Missourians. The
United States Fish and Wildlife Service (USFWS) meanwhile drafted a biological
opinion stating that the proposal would actually imperil the pallid sturgeon.

      David Shorr, the Director of the Missouri Department of Natural Resources,
made a FOIA request on behalf of the state demanding disclosure of all “intra-agency
communications discussing the pallid sturgeon.” The particular document which is the
subject of this appeal is an intra-agency memorandum on the pallid sturgeon. The
Corps refused to disclose it, relying on the FOIA deliberative process privilege, which
exempts 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.” See 5 U.S.C. § 552(b)(5) (“Exemption 5”). The district court concluded
nondisclosure of the memo was justified by Exemption 5.

       The purpose of the deliberative process privilege is to allow agencies freely to
explore alternative avenues of action and to engage in internal debates without fear of
public scrutiny. See Assembly of State of Cal. v. United States Dep&t of Commerce,
968 F.2d 916, 920 (9th Cir. 1992). Exemption 5 to the FOIA permits nondisclosure if
the document in question is an inter- or intra-agency memorandum which is both
predecisional and deliberative. Id. at 920-21. A predecisional document is one which
is designed to assist agency decisionmakers in arriving at their decisions and which


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contains the personal opinions of the writer rather than the policy of the agency. Id.
A document is deliberative if its disclosure would expose the agency&s decision-making
process in a way that would discourage candid discussion and thus undermine the
agency&s ability to perform its functions; the focus is on whether the document is part
of the agency&s deliberative process. Id.

       We have examined the sturgeon memo and agree that it is protected from
disclosure by Exemption 5. The memo is a two-and-one-half page document which
was written by Acting Deputy Director Warren J. Mellema on August 23, 1994 and
circulated to staff. It consists of some general comments about the USFWS draft
biological opinion, as well as specific comments responding to particular paragraphs
of the opinion. The sturgeon memo is actually an excellent example of the kind of
document Exemption 5 is designed to protect. It is the frank reaction of an individual
with significant responsibility to the draft biological opinion, designed to assist agency
decisionmakers in formulating final agency policy by candidly critiquing the
development of the proposed policy. Premature disclosure of critical comments while
policy is being formulated would discourage free ranging criticism and consideration
of alternatives within an agency and would not be in the public interest.

       Missouri advances several arguments why the memo should nevertheless be
disclosed. First, Missouri argues that disclosure is required by NEPA, by a regulation
from the Council on Environmental Quality (CEQ), and also by fundamental fairness.
Although NEPA contemplates public participation, we do not agree that NEPA
necessitates disclosure of internal agency memoranda which are generated as part of
the agency&s deliberative process in preparing its EIS. Rather, NEPA&s statutory
language specifically indicates that disclosure to the public is to be in accord with
FOIA, which includes Exemption 5. See 42 U.S.C. § 4332(C) (EIS shall be made
available to public in accord with 5 U.S.C. § 552). The CEQ regulation does not
control, as it applies only to inter-agency memoranda, and the sturgeon memo is an
intra-agency communication. See 40 C.F.R. § 1506.6(f) (1997) (requiring agencies to


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make “any underlying documents available to the public pursuant to [FOIA], without
regard to the exclusion for interagency memoranda where such memoranda transmit
comments of Federal agencies on the environmental impact of the proposed action”).
We also do not see how nondisclosure would hinder fundamental fairness. The
sturgeon memo provides no new factual data which could be used by Missouri to
formulate its position on development of the Corps& final EIS. The memo merely
comments on the USFWS biological opinion, which has already been disclosed to the
public. Furthermore, nondisclosure does not preclude Missouri from commenting on
either the Corps& draft EIS or the USFWS opinion.

       Missouri maintains that the Corps has failed to show how the deliberative
process would be adversely affected by disclosing the sturgeon memo. Perhaps a fuller
description by the Corps of the sturgeon memo and why it is exempt might have
avoided this litigation, but it was not improper for the Corps to conclude that open and
frank intra-agency discussion would be “chilled” by public disclosure of this memo
generated as part of the agency&s deliberative process.

       Finally, Missouri argues that the Corps was required to disclose the sturgeon
memo in accord with agency policy which mandates disclosure unless the document
is exempt under FOIA and a significant reason exists for nondisclosure. As we have
previously discussed, however, Exemption 5 protects the memo from nondisclosure,
and the Corps was entitled to conclude that disclosure would imperil its agency
functions by stifling internal debate and discussion on the merits of its draft EIS in light
of the USFWS opinion.

       Our examination of the sturgeon memo persuades us that Exemption 5 justified
the Corps& decision not to disclose it to the state. Accordingly, we affirm the judgment
of the district court.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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