                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-2215
ENVIRO TECH INTERNATIONAL, INC.,
                                               Plaintiff-Appellant,
                                 v.

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
                                              Defendant-Appellee.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
              No. 02 C 4650—Amy J. St. Eve, Judge.
                          ____________
   ARGUED NOVEMBER 6, 2003—DECIDED JUNE 10, 2004
                  ____________



  Before CUDAHY, MANION, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. Enviro Tech International, Inc.
(“Enviro Tech”), filed this action seeking judicial review of
the United States Environmental Protection Agency’s
(“EPA’s”) refusal to produce certain documents in response
to Enviro Tech’s request under the Freedom of Information
Act, 5 U.S.C. § 552 (“FOIA”). The EPA asserted, and the
district court agreed, that the withheld documents were
exempt from disclosure under section 552(b)(5) pursuant to
the so-called deliberative process privilege. Enviro Tech
2                                               No. 03-2215

appeals, asserting that the withheld documents relate to
actions that are beyond the scope of the EPA’s statutory
authority and that the deliberative process privilege does
not exempt from disclosure materials relating to such ultra
vires conduct. We affirm.


                             I.
  As a party to the 1987 Montreal Protocol on Substances
that Deplete the Ozone Layer, the United States undertook
to freeze and ultimately to reduce the production and use of
chlorofluorocarbons and other chemicals that have a
deleterious effect on the stratospheric ozone layer. In 1990
amendments to the Clean Air Act, Congress established
timetables for phasing out the production and use of ozone-
depleting substances (“ODS”). See 42 U.S.C. § 7671c-e.
However, concerned with the safety of the alternatives to
ODS, Congress also provided that “[t]o the maximum extent
practicable, [ODS] shall be replaced by chemicals, product
substitutes, or alternative manufacturing processes that
reduce overall risks to human health and the environment.”
§ 7671k(a). In furtherance of that objective, Congress
ordered the EPA to take a series of steps. First, the EPA
was to take the lead in establishing programs, initiatives,
and other activities aimed at identifying, evaluating, and
developing alternatives to ODS. § 7671k(b). Second, the
EPA was to promulgate rules prohibiting the replacement
of any ODS with an alternative that itself poses a danger to
human health or the environment, so long as the EPA has
identified another substitute that reduces the potential risk
to human health and the environment and is currently or
potentially available. § 7671k(c). Finally, the EPA was to
develop a list of substances that are “safe alternatives” for
specific uses and a separate list of substitutes that are
prohibited for specific uses. Id. The legislation also allows
any person to petition the EPA either to add a substance to
No. 03-2215                                                   3

or remove it from one of these lists. § 7671k(d). In 1994, the
EPA established the Significant New Alternatives Policy
(“SNAP”) program to carry out these directives.
   Enviro Tech, a company based in Melrose Park, Illinois,
markets a line of industrial solvents based on the chemical
compound n-propyl bromide (“nPB”). In 1996, Enviro Tech
filed a petition with the EPA seeking to have nPB identified
as an acceptable alternative for ODS under the SNAP
program. As part of its evaluation process, the SNAP pro-
gram engaged a private contractor to review the scientific
literature on the toxicity of nPB and to recommend a work-
place exposure limit for this chemical. In January 2002,
before the EPA had issued a proposed rule on the accept-
ability of nPB as an ODS substitute, Enviro Tech served a
FOIA request on the EPA seeking any documents related to
the potential toxicity of nPB and the agency’s evaluation of
that toxicity. EPA released a number of documents in
response to Enviro Tech’s request, but ultimately withheld
37 documents on the ground that these fell within the
deliberative process exception to FOIA. That exception, as
we explain more fully below, permits an agency to withhold
from public disclosure records relating to the agency’s
internal evaluation and formulation of policy.
  After exhausting its administrative remedies, Enviro
Tech filed suit in the district court seeking judicial review
of the EPA’s decision. See 5 U.S.C. § 552(a)(4)(B). On cross-
motions for summary judgment, the district court concluded
in relevant part that because the withheld documents were
protected by the deliberative process privilege, FOIA
Exemption 5 relieved the EPA of the obligation to produce
them. Enviro Tech Int’l, Inc. v. U.S.E.P.A., No. 02 C 4650,
Memorandum Opinion and Order at 10-15 (N.D. Ill. Mar.
11, 2003) (“Mem. Op.”). The court found that the documents
in question satisfied the two criteria for the privilege in that
they were both “predecisional and deliberative” in nature.
See Mem. Op. at 11, citing Becker v. I.R.S., 34 F.3d 398, 403
(7th Cir. 1994):
4                                               No. 03-2215

    . . . The documents are predecisional because they were
    prepared to assist the [EPA] in preparing the recom-
    mendation for a workplace exposure limit for nPB and
    the documents were generated before the EPA made
    available to the public for review and comments the
    final draft report containing that recommendation.
    Further, the documents are deliberative because they
    relate to the process by which the EPA arrived at the
    final draft report. The documents reflect internal dis-
    cussions of proposals, suggestions, and recommenda-
    tions as well as early versions of the final draft report
    eventually made available to the public. Such materials
    are routinely shielded from disclosure by the delibera-
    tive process privilege under FOIA Exemption 5.
Mem. Op. at 12 (citations omitted). The court went on to
reject Enviro Tech’s contention that the EPA could not
invoke the deliberative process privilege as to these doc-
uments because it lacks statutory authority to regulate
workplace exposure limits for nPB. The court distinguished
Weissman v. C.I.A., 565 F.2d 692, 694-96 (D.C. Cir. 1977),
which held that the Central Intelligence Agency (“CIA”)
could not invoke the “law enforcement purpose” exemption
under FOIA, see § 552(b)(7), because the CIA was statuto-
rily barred from engaging in any law enforcement activity.
“Exemption 5 itself contains no language restricting its
application to only those agency activities specifically
authorized by Congress.” Mem. Op. at 14. The court also
noted that subsequent cases had declined to extend
Weissman’s ultra vires rationale to other FOIA exemptions.
Id.
  Subsequent to the district court’s decision in the EPA’s
favor, the EPA in June 2003 issued a Notice of Proposed
Rulemaking that proposed to list nPB as acceptable for use,
inter alia, as a solvent. 68 Fed. Reg. 33284 (June 3, 2003)
(the “Notice”). The text of the Notice explains that upon
No. 03-2215                                                   5

review of a proposed ODS substitute, “the [EPA] may make
a determination that a substitute is acceptable only if
certain conditions of use are met to minimize risks to
human health and the environment.” Id. at 33287. The EPA
has made such a determination with respect to nPB,
concluding that it is an acceptable substitute for certain
types of ODS, subject to use conditions. Id. at 33288. Among
the use conditions specified for nPB is a guideline recom-
mending that workers inhale no more than an average of 25
parts per million (“pph”) of the chemical over the course of
an eight-hour workday. Id. The Notice makes clear that this
is a recommended rather than a mandatory limit on
workplace exposure to nPB and that the authority to
establish a binding limit lies solely with the Occupational
Safety and Health Administration (“OSHA”), which as of
yet has established no such limit. See id. at 33288, 33289-
90, 33300, 33310.
    In the future, OSHA may develop a mandatory expo-
    sure limit for nPB use in the workplace. The result of
    OSHA’s review could result in a permissible exposure
    limit (PEL) different from EPA’s recommended ex-
    posure limit of 25 ppm. . . . As stated earlier in this pre-
    amble, EPA defers to OSHA in regulating workplace
    safety. The recommended [acceptable exposure limit
    (AEL)] in today’s proposal is an interim measure in the
    absence of an OSHA PEL. Thus, any PEL that OSHA
    sets would supersede EPA’s recommended AEL.
Id. at 33300. Public comments on the EPA’s proposed rule
as to nPB were solicited with a due date of August 4, 2003.
The agency is expected to issue a final rule sometime this
year.


                              II.
  Typically, we review a district court’s summary judgment
disposition of a FOIA request to determine whether the
6                                                No. 03-2215

district court had a sufficient factual basis for its ruling
and, if so, whether the court’s decision was clearly errone-
ous. Solar Sources, Inc. v. United States, 142 F.3d 1033,
1038 (7th Cir. 1998). We have acknowledged that use of the
clearly erroneous standard is in tension with the de novo
standard that normally governs our review of summary
judgment decisions. See id. at 1038 n.5 (citing Becker v.
I.R.S., supra, 34 F.3d at 402 n.11). We have also recognized
that the courts of appeals are divided as to the appropriate
standard of review in FOIA cases decided by way of sum-
mary judgment. Id. Indeed, our own case law is not entirely
consistent on this point. See In re Wade, 969 F.2d 241, 245
(7th Cir. 1992), and Kaganove v. E.P.A., 856 F.2d 884, 886
(7th Cir. 1988) (engaging in de novo review). Review for
clear error remains the norm for FOIA cases in this circuit.
Solar Sources, 142 F.3d at 1038 & n.5.
  FOIA requires a federal agency upon request to disclose
records in its possession, subject to nine exemptions.
§ 552(a), (b). Disclosure is required unless the requested
record is clearly exempted from disclosure by the statute.
N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95
S. Ct. 1504, 1509 (1975). In view of the mandate for broad
disclosure, those exemptions are to be construed narrowly.
U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8, 108 S. Ct.
1606, 1611 (1988). The government bears the burden of
proving by a preponderance of the evidence that a with-
held document falls within one of the exemptions.
§ 552(a)(4)(B).
  Exemption 5 exempts from mandatory disclosure com-
munications that are “inter-agency or intra-agency mem-
orandums or letters which would not be available by law
to a party other than an agency in litigation with the agen-
cy.” § 552(b)(5). “This language clearly contemplates that
the public is entitled to all such memoranda or letters that
a private party could discover in litigation with the agency.”
E.P.A. v. Mink, 410 U.S. 73, 85-86, 93 S. Ct. 827, 835
No. 03-2215                                                 7

(1973). Conversely, if a private litigant could not obtain
certain records from the agency in discovery, Exemption
5 relieves the agency of the obligation to produce that doc-
ument to a member of the public. Sears, 421 U.S. at 148, 95
S. Ct. at 1515. Civil discovery rules thus inform the inquiry
into what may or may not be withheld pursuant
to Exemption 5, although, in view of the circumstances
distinguishing a FOIA request from run-of-the-mill civil
litigation, those rules can be applied only “by way of rough
analogies.” Mink, 410 U.S. at 86, 93 S. Ct. at 835. One such
rule that Exemption 5 does incorporate is that documents
reflecting the deliberative or policy-making processes of
governmental agencies are privileged from disclosure. Id. at
86-87, 93 S. Ct. at 835-36; see also Sears, 421 U.S. at 149,
95 S. Ct. at 1516.
    The deliberative process privilege rests on the obvious
    realization that officials will not communicate candidly
    among themselves if each remark is a potential item
    of discovery and front page news, and its object is to en-
    hance the quality of agency decisions by protecting open
    and frank discussion among those who make them
    within the Government.
Dep’t of Interior v. Klamath Water Users Protective Ass’n,
532 U.S. 1, 8-9, 121 S. Ct. 1060, 1066 (2001) (internal quo-
tation marks and citations omitted); see also United States
v. Nixon, 418 U.S. 683, 705, 94 S. Ct. 3090, 3106 (1974)
(“Human experience teaches that those who expect public
dissemination of their remarks may well temper candor
with a concern for appearances and for their own interests
to the detriment of the decisionmaking process.”). Consis-
tent with its purpose, the deliberative process privilege
typically does not justify the withholding of purely factual
material, Mink, 410 U.S. at 87-88, 93 S. Ct. at 836, nor of
documents reflecting an agency’s final policy decisions,
Sears, 421 U.S. at 151-54, 95 S. Ct. at 1516-18, but it does
apply to predecisional policy discussions, id. at 153, 95 S.
8                                                 No. 03-2215

Ct. at 1517-18, and to factual matters inextricably inter-
twined with such discussions, Mink, 410 U.S. at 91-21, 93
S. Ct. at 838. Thus, in order to qualify for the privilege, a
document must be both predecisional in the sense that it is
“actually [a]ntecedent to the adoption of an agency policy,”
and deliberative in the sense that it is “actually . . . related
to the process by which policies are formulated.” Jordan v.
U.S. Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en
banc), overruled in part on other grounds by Crooker v.
Bureau of Alcohol, Tobacco, & Firearms, 670 F.2d 1051
(D.C. Cir. 1981) (en banc); see also Becker, 34 F.3d at 403;
United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993);
King v. I.R.S., 684 F.2d 517, 519 (7th Cir. 1982).
  As we have noted, the district judge found that the 37
documents at issue in this case meet both of the criteria for
the privilege—they predate public release of the EPA’s
proposed rule establishing, among other things, a recom-
mended workplace exposure limit for nPB, and they reflect
the internal dialogue at the EPA regarding the proposals,
suggestions, recommendations, and early draft versions of
the proposed rule on nPB. Mem. Op. at 12. Enviro Tech
does not quarrel with the district court’s assessment. Again,
Enviro Tech’s sole contention is that the EPA lacks author-
ity to propose a workplace exposure limit for nPB and, as a
result, the deliberations that culminated in the agency’s
proposal of such a limit are beyond the scope of the deliber-
ative process privilege.
  Weissman v. C.I.A., supra, 565 F.2d 692, is the principal
authority that Enviro Tech cites in support of its ultra vires
argument. The plaintiff in Weissman, upon learning that
the CIA had been investigating left-of-center political
activists, had asked the CIA to produce any information it
had compiled regarding his own political activities. As it
turned out, the CIA, unbeknownst to the plaintiff, had
identified him as a possible recruit for employment as an
informant and had monitored his activities on and off over
a five-year period. The agency produced some documents in
No. 03-2215                                                  9

response to the plaintiff’s FOIA request, but withheld
others on the basis of, inter alia, Exemption 7, which
shields from disclosure records compiled for law enforce-
ment purposes. § 552(b)(7). The District of Columbia Circuit
accepted the CIA’s representation that it had monitored the
plaintiff’s activities in a genuine effort to ascertain whether
he might be an appropriate candidate for recruitment.
Nonetheless, it rejected the notion that this sufficed as a
basis for withholding the records of that monitoring under
FOIA’s law enforcement exemption. The statute that
created the CIA and authorized it to gather intelligence
related to national security expressly provided that the
agency was to have no law enforcement authority. “This
directive was intended, at the least, to prohibit the CIA
from conducting secret investigations of United States
citizens, in this country, who have no connection with the
Agency.” Id. at 695. “Congress had a realistic fear of secret
police that would move inward rather than outward, and
assume prerogatives never intended.” Id. As a result, to the
extent that the CIA was purporting to have engaged in law
enforcement when it monitored the plaintiff’s political
activities, it was conducting activity that Congress had
expressly forbidden it to conduct.
    A full background check within the United States of a
    citizen who never had any relationship with the CIA is
    not authorized, and the law-enforcement exemption is
    accordingly unavailable. The Agency simply has no au-
    thority in the guise of law enforcement to make such a
    background check of Weissman with a view to his
    possible recruitment.
Id. at 696.
  Weissman does not put into doubt the EPA’s ability to
invoke the deliberative process privilege. The parties have
cited no case, and we can find none, that applies Weissman
in evaluating an agency’s reliance on the deliberative pro-
cess privilege, and it is not immediately apparent that
Weissman’s ultra vires rationale would translate readily
10                                              No. 03-2215

into the latter context. The privilege at issue in Weissman
was confined to a particular activity—law enforcement— in
which the CIA was expressly forbidden to engage. The
formulation of policy, by contrast, is not something that is
foreclosed to the EPA or to any other agency; and although
there are obviously limits to each agency’s policymaking
authority, it might well be difficult to delineate when an
agency’s internal, predecisional discussions are ultra vires,
in the sense that they address potential courses of action
that are wholly beyond the legitimate scope of the agency’s
mission, and when they are not. Along the way to formulat-
ing a policy that is within its power to implement, an
agency might legitimately identify and consider a host of
alternatives, some within the agency’s power to effectuate
and some without. The agency might, indeed, consider the
boundaries of its own jurisdiction. Deeming internal dis-
cussions unprotected by the deliberative process privilege
because, in retrospect, it appears that the agency was
considering proposals that were beyond the scope of its
authority to implement might well discourage the kind of
frank and appropriate policymaking discussions that the
privilege was meant to protect and promote.
  Nonetheless, we may assume for the sake of argument
that the scope of an agency’s authority places some limits
on the deliberate process privilege, and that internal com-
munications about something not even arguably within the
agency’s domain might not be privileged. Perhaps if EPA
staff members were to begin mapping out policy on some-
thing like school prayer, for example, then the privilege
would not apply. We may likewise assume, looking to
another line of cases that Enviro Tech cites to us, that in-
ternal discussions about a course of agency action that
would be nefarious, if not illegal, likewise would not be
protected by the deliberative process privilege. See Tax
Reform Research Group v. I.R.S., 419 F. Supp. 415, 426
(D.D.C. 1976) (documents relating to White House efforts to
No. 03-2215                                                 11

use Internal Revenue Service against its political enemies
“simply cannot be construed as being part of any proper
governmental process”); see also Dema v. I.R.S., 1979 U.S.
Dist. LEXIS 9025, at *6 (N.D. Ill. Oct. 22, 1979) (noting that
documents in question “do not reflect any governmental
impropriety, but rather are ‘part of the legitimate govern-
mental process intended to be protected by Exemption 5’ ”)
(quoting Tax Reform Research Group, 419 F. Supp. at 426);
Hearnes v. I.R.S., 1979 WL 1428, at *6 (E.D. Mo. July 2,
1979) (“Plaintiff argues correctly that he is entitled to
papers and documents which indicate that political abuses
were committed by the Internal Revenue Service.”) (footnote
omitted) (citing Tax Reform Research Group); see also In re
Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997) (suggesting
in dicta that deliberative process privilege “disappears
altogether when there is any reason to believe that govern-
ment misconduct occurred”).
  But we are far from such a case here. Although Enviro
Tech contends that the EPA has no authority to establish a
workplace exposure limit on nPB (a responsibility that,
Enviro Tech emphasizes, lies solely with OSHA), Congress
has charged the EPA with the task of evaluating the safety
of alternatives to ODS and identifying substitutes that are
either safe or prohibited for specific uses. 42 U.S.C.
§ 7671k(b), (c). It is, at the least, arguable that identifying
the exposure limits within which a particular ODS substi-
tute is safe is a task subsumed within that charge. More-
over, as the Notice of the proposed rule on nPB reflects, the
EPA has only promulgated a recommended limit on work-
place exposure; the Notice expressly defers to OSHA’s
authority to establish a binding workplace exposure limit.
We hasten to add that it is not within our own authority to
decide whether the recommended limit, or any other aspect
of the EPA’s proposed rule (once finalized), is within the
EPA’s power; that task belongs to our colleagues on the
District of Columbia Circuit. 42 U.S.C. § 7607(b); see
12                                               No. 03-2215

Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901, 914
n.6 (7th Cir. 1990). It is enough for us to say that a rec-
ommended workplace exposure limit for nPB is not so
patently beyond the scope of the EPA’s authority as to pre-
clude the agency from having internal discussions about it
or to invoke the deliberative process privilege.


                            III.
  We find no clear error in the district court’s conclusion
that the 37 documents in issue are protected by the deli-
berative process privilege. There is no dispute that these
documents are both predecisional and deliberative. To the
extent that the privilege might not apply to internal agency
discussions of a proposal that is wholly beyond the agency’s
authority or unrelated to a legitimate governmental
purpose, a question we do not resolve, we are satisfied that
a recommended exposure limit on use of an ODS substitute
does not amount to such a plainly ultra vires course of
action. The EPA was therefore entitled to invoke the
deliberative process privilege as to the consideration of such
a recommended limit.
                                                   AFFIRMED
A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—6-10-04
