American Oversight v. United States Department of Health

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 29, 2023 Decided May 17, 2024
No. 22-5281
AMERICAN O VERSIGHT,
APPELLANT
v.
UNITED S TATES D EPARTMENT OF H EALTH AND H UMAN
S ERVICES AND OFFICE OF M ANAGEMENT AND B UDGET,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00827)
Jessica Anne Morton argued the cause for appellant. With
her on the briefs were Katherine M. Anthony and Mehreen A.
Rasheed.
Nikhel S. Sus was on the brief for amicus curiae Citizens
for Responsibility and Ethics in Washington in support of
appellant.
Bruce D. Brown, Katie Townsend, and Adam A. Marshall
were on the brief for amicus curiae The Reporters Committee
for Freedom of the Press in support of appellant.

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Benjamin M. Shultz, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Mark B. Stern, Attorney.
Before: P ILLARD , W ILKINS , and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARCIA.
Opinion concurring in part and dissenting in part filed by
Circuit Judge WILKINS .
GARCIA, Circuit Judge: The Freedom of Information Act
(“FOIA”) requires federal agencies to make their records
available to the public, subject to nine exemptions for specific
categories of material. Exemption 5 protects “inter-agency or
intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation
with the agency.” 5 U.S.C. § 552(b)(5).
This case concerns the meaning of “intra-agency.” Under
the “consultant corollary” to Exemption 5, first endorsed by
this court in 1971, we have held that the term encompasses
nearly all documents used by an agency in its deliberative
process, even if the author or recipient is not an employee of
that same agency. In Department of Interior v. Klamath Water
Users Protective Association, 532 U.S. 1 (2001), the Supreme
Court expressed skepticism about the breadth of that doctrine.
The Court emphasized that the term intra-agency must be given
“independent vitality” and suggested that Exemption 5 might
extend at most to documents from outsiders that are similarly
situated to agency employees in that they have no independent
stake in the matter under discussion. See id. at 11–12.

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Since Klamath, we have not had to decide whether
agencies may invoke Exemption 5 to withhold agency records
generated by a government consultant with its own stake in the
outcome of the agency’s decision-making process. Presented
with the question, we conclude they may not.
In this case, two Executive Branch agencies invoked
Exemption 5 to withhold communications with members of
Congress and their staffs during negotiations over potential
healthcare reform legislation. Because the record shows
Congress had an independent stake in that subject and did not
provide disinterested advice as an agency employee would, we
conclude that Exemption 5 does not apply to the records at
issue and reverse the district court.
I
In early 2017, House Republican leaders sought to repeal
the Affordable Care Act. While the effort was gaining steam,
American Oversight filed two identical FOIA requests with the
Department of Health and Human Services (“HHS”) and the
Office of Management and Budget (“OMB”). The requests
sought communications “relating to healthcare reform”
between each agency and Congress. J.A. 32, 40. The agencies
did not timely respond to the requests, so American Oversight
filed suit in the district court, which soon ordered the agencies
to make rolling productions.
The agencies made those productions for several months
before reaching an impasse with American Oversight.
Invoking Exemption 5, HHS and OMB refused to disclose
certain communications between the agencies and Congress as
“intra-agency memorandums or letters.” 5 U.S.C. § 552(b)(5).
The parties filed competing motions for summary
judgment on that issue. The agencies argued that Exemption 5
applied because the communications were between Trump

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Administration officials and Republican members of Congress,
and their staffs, who shared the “goal of repealing and
replacing” the Affordable Care Act. See Memorandum of
Points and Authorities in Support of Defendants’ Motion for
Summary Judgment at 20, Am. Oversight, Inc. v. U.S. Dep’t of
Health & Hum. Servs., No. 17 Civ. 827 (EGS) (DAR), 2022
WL 1719001 (D.D.C. May 27, 2022), Dkt. 25-1.
American Oversight acknowledged that, under our
consultant corollary case law, Exemption 5’s term “intra-
agency” can be read to include some scenarios where an
outside consultant assists an agency in carrying out the
agency’s functions. But here, it argued, the consultant
corollary could not apply. According to American Oversight,
Congress and its staffers were not functioning in a consultative
capacity—they were negotiating with a co-equal branch of
government to pass a new healthcare law, each side bringing
its own interests to bear. In American Oversight’s view, that
certain members of Congress and the agencies shared a
common goal to pass healthcare reform could not transform the
cross-branch communications into “intra-agency” ones for
purposes of Exemption 5.
The district court sided with the agencies and found nearly
all the withholdings proper. The district court observed that in
Klamath’s wake, district courts in this Circuit have taken
different approaches to the consultant corollary’s scope. Some
cases have required that outside consultants lack an
“independent interest” in the subject that they discuss with the
agency. See Am. Oversight, Inc., 2022 WL 1719001, at *13
(citing Am. Oversight v. U.S. Dep’t of Health & Hum. Servs.,
380 F. Supp. 3d 45, 54–55 (D.D.C. 2019)). Others have
protected communications with outside consultants having
such an interest, so long as the consultant and agency share
overriding common goals. Id. (citing Jud. Watch, Inc. v. U.S.

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Dep’t of State, 306 F. Supp. 3d 97, 111 (D.D.C. 2018)). The
district court explained that depending on which line of cases
it followed, the outcome here would be different. Under the
first line of cases, American Oversight would win. See id. But
under the second, the agencies would win. See id. The district
court chose the latter course, and therefore held that the
communications were protected from disclosure under
Exemption 5. See id. at *12–15.
Separate from the Exemption 5 issue, American Oversight
also challenged the adequacy of HHS’s (but not OMB’s) search
for responsive records, arguing that HHS improperly omitted
certain terms from its search. Each party moved for summary
judgment, and the district court ruled for HHS. Id. at *11–12.
American Oversight appeals both rulings. Our review is
de novo. Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th
350, 361 (D.C. Cir. 2021).
II
Congress enacted FOIA in 1966 to give the public “access
to official information long shielded unnecessarily from public
view.” Env’t Prot. Agency v. Mink, 410 U.S. 73, 80 (1973).
The Act requires government agencies to make information
available upon request unless the information is protected by
one of nine statutory exemptions. 5 U.S.C. § 552(b). We
recognize FOIA’s “goal of broad disclosure” and give the
exemptions “a narrow compass.” U.S. Dep’t of Just. v. Tax
Analysts, 492 U.S. 136, 151 (1989); see FBI v. Abramson, 456
U.S. 615, 630 (1982).
The agencies here have invoked Exemption 5. 5 U.S.C.
§ 552(b)(5). Exemption 5 protects certain kinds of agency
records under two conditions. It applies to (1) “inter-agency or
intra-agency memorandums or letters” that (2) “would not be
available by law to a party other than an agency in litigation

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with the agency.” Id. On appeal, American Oversight does not
dispute the government’s claim that the second condition is
satisfied because the records at issue are subject to the
deliberative-process privilege, which protects certain
documents used in government decision-making processes.
See Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C.
Cir. 1982).
The parties’ disagreement centers instead on the first
condition, which requires the records to be either “inter-
agency” or “intra-agency.” The parties agree that the records
are indisputably not “inter-agency.” Congress is explicitly
excluded from the statute’s definition of “agency.” 5 U.S.C.
§ 551(1)(a). The question, then, is whether the records can
qualify as “intra-agency.”
One might think that the statutory text yields a
straightforward “no.” The communications and documents,
after all, were not authored by and exchanged between a single
agency’s employees. But under the “consultant corollary,” our
court and others have long treated Exemption 5’s coverage of
“intra-agency” records as extending beyond just that category.
We first endorsed the corollary in Soucie v. David, 448
F.2d 1067 (D.C. Cir. 1971), to account for the reality that
agencies often rely on outside experts for advice in their
deliberative processes. We explained that “[t]he Government
may have a special need for the opinions and recommendations
of temporary consultants, and those individuals should be able
to give their judgments freely without fear of publicity.” Id. at
1078 n.44. An outsider’s report can accordingly “be treated as
an intra-agency memorandum of the agency which solicited it”
for purposes of Exemption 5. Id. Other circuits followed suit.
See Lead Indus. Ass’n, Inc. v. OSHA, 610 F.2d 70, 83 (2d Cir.
1979) (“[W]e have nothing that can usefully be added to Chief

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Judge Bazelon’s statement in Soucie . . . .”); Hoover v. Dep’t
of the Interior, 611 F.2d 1132, 1138 (5th Cir. 1980).
Over the years, we applied the consultant corollary to
protect records an agency exchanged with non-agency
outsiders. Although our cases often cited additional
considerations, the dominant one guiding the doctrine’s
application was whether the record was “created for the
purpose of aiding the agency’s deliberative process” and in fact
used in that process. Dow Jones & Co. v. U.S. Dep’t of Just.,
917 F.2d 571, 575 (D.C. Cir. 1990) (emphasis omitted).
Whether “the author [was] a regular agency employee or a
temporary consultant” was “irrelevant”; our focus instead was
on “the role, if any, that the document play[ed] in the process
of agency deliberations.” CNA Fin. Corp. v. Donovan, 830
F.2d 1132, 1161 (D.C. Cir. 1987).
The Supreme Court confronted the consultant corollary for
the first and only time in its 2001 Klamath decision. Klamath
addressed Exemption 5’s applicability to documents
exchanged between certain Indian Tribes and the Department
of the Interior. The documents concerned water-allocation
proceedings in which the Tribes sought to maximize their share
of available water. See 532 U.S. at 5–6. Six of the seven
documents were “prepared by the Klamath Tribe or its
representative”; one was created by a Bureau of Indian Affairs
official and sent “to lawyers for the Klamath and Yurok
Tribes.” Id. at 6.
Relying on the consultant corollary, the government
argued that the documents were protected from disclosure
because the Interior Department used the documents in its
decision-making process, and everyone involved expected the
documents to be kept confidential. See id. at 11. The Supreme
Court did not doubt the government’s claim that
“confidentiality in communications with tribes is conducive to

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a proper discharge” of the Interior Department’s obligations as
trustee for the Tribes. Id. Nor did it dispute that the “candor
of tribal communications with the Bureau would be eroded” if
the government’s argument were rejected. Id.
The Court nevertheless rejected the government’s
position. “To qualify” under Exemption 5, the Court
recounted, a record “must . . . satisfy two conditions,” id. at 8:
It must be protected by a litigation privilege, and it “must be
‘inter-agency or intra-agency,’” id. at 9 (quoting 5 U.S.C.
§ 552(b)(5)). The Court explained that finding both of
Exemption 5’s requirements satisfied whenever a record is
used in an agency’s deliberative process—a precondition for
the deliberative-process privilege to apply—would improperly
“ignore[]” the distinct statutory requirement “that the
document be ‘intra-agency or inter-agency.’” Id. at 12. That
requirement must be given “independent vitality,” not treated
as “a purely conclusory term, just a label to be placed on any
document the Government would find it valuable to keep
confidential.” Id.
The Court assumed without deciding that some outside
consultants could qualify as “intra-agency.” Id. It observed,
however, that in the “typical case[]” in which lower courts
applied the consultant corollary, the “fact about the consultant
that is constant . . . is that the consultant does not represent an
interest of its own, or the interest of any other client, when it
advises the agency that hires it.” Id. at 10–11. That is, the
“consultants whose communications have typically been held
exempt have not been communicating with the Government in
their own interest or on behalf of any person or group whose
interests might be affected by the Government action addressed
by the consultant.” Id. at 12. That does not mean that the
“outside consultant must be devoid of a definite point of view
when the agency contracts for its services.” Id. at 10. The key

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instead is the outsider’s obligations—its “only obligations”
must be “to truth and its sense of what good judgment calls
for.” Id. at 11. When that is true, the Court concluded, the
consultant “functions just as an employee would be expected
to,” id., and the “consultants may be enough like the agency’s
own personnel to justify calling their communications ‘intra-
agency,’” id. at 12.1
Turning to the facts of the case, the Court held that the
Tribes’ communications with the Interior Department could
not qualify as intra-agency. Unlike the disinterested agency
consultants typically found within the scope of Exemption 5,
the Tribes “necessarily communicate[d] with the Bureau with
their own, albeit entirely legitimate, interests in mind.” Id. The
Court explained that “this fact alone distinguishes tribal
communications from” the typical consultant corollary case.
Id. The Court then observed that “the distinction is even
sharper” because the Tribes were not only self-interested but
were “self-advocates at the expense of others seeking benefits
inadequate to satisfy everyone.” Id. The Tribes, that is, were
seeking to maximize their share of a finite supply of water at
the expense of other interested parties. See id. at 5. The Court
1 The Court explained in a footnote that two of our prior cases
“arguably extend beyond . . . the typical examples.” Klamath, 532
U.S. at 12 n.4. In Public Citizen, Inc. v. Department of Justice, 111
F.3d 168 (D.C. Cir. 1997), we held that Exemption 5 protected from
disclosure communications between former Presidents and the
National Archives and Records Administration, even though the
Presidents had “their own, independent interests” in mind. Klamath,
532 U.S. at 12 n.4. And in Ryan v. Department of Justice, 617 F.2d
781 (D.C. Cir. 1980), we held that Exemption 5 protected from
disclosure questionnaire responses that Senators provided to the
Attorney General about their judicial nomination processes. Despite
the Court’s evident skepticism of those holdings, it did not explicitly
overrule them. See Klamath, 532 U.S. at 12 n.4.

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therefore held that the documents were not protected by
Exemption 5 even though, again, it fully credited the
government’s “interest in frank communication” with the
Tribes and its concern that disclosure would chill future
communications. Id. at 11.
III
Until now, we have not been required to reconcile Klamath
with our consultant corollary precedent. In each of our post-
Klamath cases on this subject, the outsider “did not represent
an interest of its own, or the interest of any other client” when
it communicated with the agency. McKinley v. Bd. of
Governors of Fed. Rsrv. Sys., 647 F.3d 331, 337 (D.C. Cir.
2011) (alterations and internal quotation marks omitted); see
Jud. Watch, Inc. v. U.S. Dep’t of Energy, 412 F.3d 125, 130–
31 (D.C. Cir. 2005); Nat’l Inst. of Mil. Just. v. U.S. Dep’t of
Def. (“NIMJ”), 512 F.3d 677, 685 (D.C. Cir. 2008) (observing
that “there is no dispute that the individuals [the agency]
consulted were not pursuing interests of their own so as to run
afoul of Klamath’s concern”). Since Klamath, in other words,
we have only applied the corollary in “situations where an
outside consultant did not have its own interests in mind.” Pub.
Emps. for Env’t Resp. v. U.S. Section, Int’l Boundary & Water
Comm’n, 740 F.3d 195, 201–02 (D.C. Cir. 2014).
This case is different. American Oversight does dispute
whether the agency outsiders—members of Congress and their
staffs—represented an interest of their own in the matters under
discussion. As we explain in greater detail in Section IV of this
opinion, American Oversight argues—and both the district
court and we agree—that members of Congress and their staffs
brought “divergent interest[s] to bear” when they engaged with
the agencies concerning potential healthcare legislation. Am.
Oversight, Inc., 2022 WL 1719001, at *13. As a result, and as
the district court also recognized, the outcome-determinative

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question is whether the consultant corollary extends beyond
what Klamath described as the typical case. Id.
Presented with the question, we now follow the path
marked by Klamath. To recap: The consultant corollary is
limited to situations where the outside entity “functions just as
an employee would be expected to,” in the sense that the entity
does not “represent an interest of its own, or the interest of any
other client, when it advises the agency that [engages] it.”
Klamath, 532 U.S. at 11. This does not mean that the outsider
must be “devoid of a definite point of view” when
communicating on the subject at issue—the outsider’s
expertise and views on a subject, after all, are presumably why
an agency would consult them. Id. at 10. Similarly, the
possibility that a consultant is “paid” or “may derive
intellectual satisfaction from consulting and possible adoption
of their views does not mean that they have a personal or
economic stake in the outcome.” Stewart v. U.S. Dep’t of
Interior, 554 F.3d 1236, 1245 (10th Cir. 2009). The key is that
the consultant must not have a stake in the outcome of the
agency’s process that would render its advice on the subject
anything other than disinterested. The inquiry is whether, like
an agency employee, the consultant’s only “obligations are to
truth and its sense of what good judgment calls for.” Klamath,
532 U.S. at 11.
This approach accommodates our twin duties as a panel of
this court to give effect to both our precedent establishing the
consultant corollary and the Supreme Court’s demand to give
“independent vitality” to the statutory term “intra-agency.” Id.
at 12. As Klamath put it, when an outsider functions “enough
like the agency’s own personnel” in the sense described above,
its communications can be regarded as “intra-agency.” Id.
The same is not true of an outsider who is “self-interested”
in the sense of having its own financial or other interest in the

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outcome of the agency’s process. As the Court recognized in
Klamath, that type of outsider cannot reasonably be regarded
as the functional equivalent of an agency employee working on
the same matter and so is not capable of “intra-agency”
communications. Id. Thus, an organization with water-use
expertise—but whose water does not come from the Klamath
Basin—could fairly be considered “intra-agency” if it prepared
a report for and communicated with the Bureau of Indian
Affairs on various allocation options; the organization would
function like an employee with special expertise but no
personal stake in the matter. But a tribe that stands to gain from
the agency’s eventual decisions on water use in the Klamath
Basin and submits a “position paper” on the issue would not.
Id. at 13 (internal quotation mark omitted).
The Ninth and Tenth Circuits have similarly adopted this
approach to the consultant corollary following Klamath. See
Rojas v. FAA, 989 F.3d 666, 674–75 (9th Cir. 2021) (en banc);
Stewart, 554 F.3d at 1244–45. The Sixth Circuit has gone
further and concluded that Klamath forecloses any form of the
consultant corollary. Lucaj v. FBI, 852 F.3d 541, 548–49 (6th
Cir. 2017). Meanwhile, no appellate court has adopted the
alternative tests proposed by the government. And as we
explain next, our adoption of the test Klamath suggests is
reinforced by our assessment that each of the government’s
proposals is improper.
The government first urges that Exemption 5 covers any
document, including those created by non-agency personnel,
that the agency considered as part of its deliberative process.
See Gov’t Br. 20, 29. After Klamath, that cannot be the test.
Indeed, the government urged a similar approach in Klamath
itself, and the Supreme Court rejected it. See 532 U.S. at 11–
12. Again, that approach would deprive the first condition in
Exemption 5—the requirement that the communication be

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“intra-agency”—of any “independent vitality.” Id. at 12. Like
the Court in Klamath, we have no reason to doubt the
government’s assertions that allowing disclosure of certain
communications between Executive Branch agencies and
Congress may chill the candor and extent of such discussions.
See Gov’t Br. 5–6. But we are not at liberty to disregard either
Klamath or the statutory text. To the extent any of our pre-
Klamath precedents supported the government’s broad any-
deliberative-document test, they are no longer good law. See,
e.g., Dellums v. U.S. Nuclear Regul. Comm’n, 863 F.2d 968,
978 n.11 (D.C. Cir. 1988) (“[A] circuit precedent eviscerated
by subsequent Supreme Court cases is no longer binding on a
court of appeals.”).2
The government next argues that if Klamath has any effect
on our precedent, it is only to create an exception based on the
specific facts of that case. The government therefore suggests
that documents used in an agency’s deliberative process are
always protected unless generated by or exchanged with
outsiders who were not just “self-advocates,” Klamath, 532
U.S. at 12, but who were also operating “at the expense of
others,” id., and thus “necessarily adverse” to competitors
outside the agency, id. at 13.
It is certainly true that Klamath dictates that such facts take
documents outside of Exemption 5’s protection. But nothing
in Klamath instructs or even suggests that those facts constitute
the proper test for determining whether a record is “intra-
agency” generally. Instead, the opinion clarified that the
fundamental distinction rendering the Tribes unlike agency
2 We have no occasion to revisit whether our two cases the
Supreme Court identified as extending beyond the “typical”
consultant corollary scenario were correctly decided on their facts.
See Klamath, 532 U.S. at 12 n.4 (discussing Public Citizen, 111 F.3d
168 and Ryan, 617 F.2d 781).

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personnel in the relevant respect was that they “necessarily
communicate[d] with the Bureau with their own . . . interests
in mind.” Id. at 12. The additional fact that the Tribes were
advocating for finite benefits at the expense of others served
only to make the distinction from agency personnel “even
sharper.” Id.; see also id. at 12 n.4 (“[T]he intra-agency
condition excludes, at the least, communications to or from an
interested party seeking a Government benefit at the expense
of other applicants.” (emphasis added)).
Moreover, no appellate court in the roughly twenty-three
years since Klamath has adopted that case’s specific facts as a
generally applicable test. We can readily see why. The
government offers no explanation of how using the facts of
Klamath as the test for Exemption 5’s coverage would bear any
relationship to the statutory requirement that the record at issue
be “intra-agency.” As already explained, requiring the outsider
to lack a stake in the outcome of the agency’s decision is a
sensible application of that term, because then the outsider may
function “just as an employee” inside the agency “would be
expected to.” Id. at 11. The government ventures no theory of
how an outsider with a stake in the outcome could ever be
regarded as sufficiently analogous to agency personnel to fit
within the statutory text. Nor does it provide any reason that
the test should turn on whether that outsider is also competing
with other agency outsiders for a finite benefit.
Finally, the agencies note that Congress consciously
designed FOIA to ensure that congressional documents would
be exempt from disclosure. Congress, as noted, is specifically
exempted from the definition of “agency” in 5 U.S.C.
§ 551(1)(a), which identifies the entities subject to the statute’s
disclosure requirements. Nothing about today’s decision
changes the fact that Congress itself is not subject to FOIA
requests. Instead, a FOIA request can reach only “agency

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records.” 5 U.S.C. § 552(a)(4)(B); see Burka v. U.S. Dep’t of
Health & Hum. Servs., 87 F.3d 508, 515 (D.C. Cir. 1996).
Whether a document constitutes an “agency record” depends
on a “‘totality of the circumstances’ test that ‘focuses on a
variety of factors surrounding the creation, possession, control,
and use of the document by an agency.’” Cause of Action Inst.
v. Off. of Mgmt. & Budget, 10 F.4th 849, 855 (D.C. Cir. 2021)
(alterations omitted) (quoting Bureau of Nat’l Affs., Inc. v. U.S.
Dep’t of Just., 742 F.2d 1484, 1490, 1492 (D.C. Cir. 1984)). A
record from Congress does not become an “agency record” just
because it comes into the agency’s possession if, for example,
“Congress manifested a clear intent to control the document.”
United We Stand Am., Inc. v. I.R.S., 359 F.3d 595, 597 (D.C.
Cir. 2004). On appeal, the agencies have not disputed that each
of the communications at issue are agency records subject to
FOIA.3
Our dissenting colleague would rule that all
communications between agencies and Congress regarding
potential legislation are protected by Exemption 5, but he
would do so on grounds entirely different from those the
government offers. Unlike the government, the dissent argues
that this case is not governed by the consultant corollary or
Klamath at all. Instead, the dissent contends that its broad
position is dictated by Rockwell International Corp. v.
Department of Justice, 235 F.3d 598 (D.C. Cir. 2001), Murphy
v. Department of Army, 613 F.2d 1151 (D.C. Cir. 1979), and
3 In the district court, the United States House Committee on
Ways and Means intervened and moved for summary judgment
against American Oversight. The Committee argued that four
records—all email chains with the agencies—were congressional
records not subject to disclosure under FOIA. HHS and OMB
opposed. The district court denied the Committee’s motion as moot
when it ruled that Exemption 5 protected the communications from
disclosure. We express no view on the merits of any such challenge.

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the text of 5 U.S.C. § 552(d). But—as the government’s failure
to make this argument suggests—those cases and Section
552(d) do not address, much less control, the question here.
In Rockwell and Murphy, there was no dispute that the
documents at issue were intra-agency or inter-agency records
and therefore satisfied Exemption 5’s threshold requirement.
See Rockwell, 235 F.3d at 604; Murphy, 613 F.2d at 1154. That
framing made sense, because the documents at issue were
confidential memoranda and reports that were prepared and
finalized within an agency or agencies and only later shared
with Congress. See Rockwell, 235 F.3d at 601; Murphy, 613
F.2d at 1153–54. The disputed question in those cases was
instead whether the agencies subsequently waived Exemption
5’s protection by sending those documents to Congress. We
answered no, drawing in part on 5 U.S.C. § 552(d), which
states that “[t]his section is not authority to withhold
information from Congress.” Because Congress had “carve[d]
out for itself a special right of access to privileged information”
in Section 552(d), we rejected a waiver rule under which
“every disclosure to Congress would be tantamount to a waiver
of all privileges and exemptions” available to executive
agencies. Rockwell, 235 F.3d at 604 (quoting Murphy, 613
F.2d at 1155–56).
Unlike in Rockwell and Murphy, the disputed question in
this case is Exemption 5’s threshold requirement—whether the
communications between the agencies and Congress are intra-
agency documents. The parties do not raise or discuss the
possibility of waiver. That framing again makes sense, given
the nature of the documents at issue here: Communications
generated through the iterative back-and-forth between the
agencies and Congress. See, e.g., Gov’t Br. 2 (framing the
issue on appeal as “[w]hether the withheld communications fall
within Exemption 5’s protection of inter- and intra-agency

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records”). Contrary to the dissent, that question is governed by
the consultant corollary and Klamath, which dealt with “tribal
communications with the Bureau,” 532 U.S. at 11, not by cases
addressing waiver or by Section 552(d). This opinion does not
affect Murphy, Rockwell, or the government’s ability to argue,
in a future case involving cross-branch interaction, that
documents withheld under FOIA Exemption 5 were initially
intra-agency or inter-agency and that the analysis should be
framed in terms of whether the government waived those
protections. But the government, for good reason, has not
attempted to frame the communications at issue in this appeal
in that way.
This case also does not address the question—also raised
only by the dissent—whether an agency’s communications
with the President are “intra-agency” or “inter-agency,”
because the only communications at issue here are those
between Congress and agencies, not the President or his staff
and the agencies. See Dissenting Op. 5–6 (citing Mink, 410
U.S. at 85).
If, as the government and the dissent fear, neither
Exemption 5 nor any other exemption covers “records whose
release would threaten . . . vital interests, the Government may
of course seek relief from Congress. All we hold today is that
Congress has not enacted the FOIA exemption the [agencies]
desire[]. We leave to Congress, as is appropriate, the question
whether it should do so.” Milner v. Dep’t of Navy, 562 U.S.
562, 581 (2011) (citation omitted).
IV
Under the post-Klamath analysis, the communications
between the agencies and Congress here are not covered by
Exemption 5. As Klamath explained, the hallmark of a
consultative relationship is that the outside entity is not

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18
“communicating with the Government in their own interest or
on behalf of any person or group whose interests might be
affected by the Government action addressed by the
consultant.” 532 U.S. at 12. When that is true, the outsider
functions “just as an employee would be expected to.” Id. at
11.
Cases in which members of Congress or their staffs could
fit that description may be rare. Congress and the Executive
Branch, of course, “have an ongoing institutional relationship
as the ‘opposite and rival’ political branches established by the
Constitution.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019,
2033–34 (2020) (quoting The Federalist No. 51, at 349 (John
Madison) (J. Cooke ed. 1961)). And Congress has a particular
institutional stake in the legislative process. Cf. Gravel v.
United States, 408 U.S. 606, 616 (1972) (“The Speech or
Debate Clause was designed to assure a co-equal branch of the
government wide freedom of speech, debate, and deliberation
without intimidation or threats from the Executive Branch.”).
When members of Congress and their staffs engage with
executive agencies concerning legislation, they are almost
inevitably acting on behalf of interests other than those of the
agencies, including those of Congress as an institution and
those of their constituents.
This case, however, does not require us to decide—and we
do not decide—whether members of Congress or their staffs
could ever satisfy the post-Klamath consultant corollary
requirements. In this case, the record makes clear that in the
communications between the agencies and Congress, each side
had an independent stake in the potential healthcare reform
legislation under discussion.
The agencies’ own declarations reveal this dynamic.
OMB’s declarant stated that it “sought to influence and shape
pending legislation by discussing, consulting, and negotiating

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19
with Congressional personnel.” J.A. 115 ¶ 20. The declarant
similarly stated that some communications between “the
Administration and Congress . . . discussed areas where they
agreed and sources of ongoing disagreement.” J.A. 113 ¶ 16.
For example, OMB withheld an email exchange “arranging a
meeting between Administration officials and strategically
selected House members. This exchange was part of the
Administration’s development of their legislative strategy with
respect to the health care bill (e.g. which members may be
supportive and which were unlikely to be).” J.A. 463. An HHS
declarant explains that the agency engaged in “deliberations”
with Congress, J.A. 205 ¶ 11, to “monitor and build support for
the” reform effort, J.A. 206 ¶ 16.4 HHS thus withheld an email
exchange that would reveal the agency’s “best strategy” “to
assist with the legislation and be involved in the health care
reform process.” J.A. 165.
4 The declarations also state that the agencies’ deliberations
with Congress informed the agencies’ own thinking in providing
advice and recommendations within the Executive Branch. See, e.g.,
J.A. 110–11 ¶ 10 (OMB used the “communications” “to provide the
President with analysis and recommendations regarding the
[American Health Care Act] and other proposed health care reform
legislation”); J.A. 205 ¶ 13 (HHS used the “discussions” to inform
“HHS’[s] process for evaluating the potential rulemakings and
operational changes that might be necessary if a bill passed”). But
the agencies’ subsequent planning and advice-giving processes do
not transmute the communications between the agencies and
Congress into intra-agency materials. If agency officials instead
created records to memorialize their own internal deliberations
during their negotiations with Congress, those records might be
properly classified as intra-agency and protected by Exemption 5—
indeed, certain documents withheld here may fit that description.
See, e.g., J.A. 154 (row 3). In fact, per Rockwell and Murphy, records
like those might even retain their protected character if they were
later shared with congressmembers per Congress’s right of access.

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20
An agency would not develop a “strategy” to “negotiate”
with and “advocate” to outsiders to garner their “support” if
those outsiders were analogous to an employee or a
disinterested consultant without its own independent stake in
the matter. At least where agencies and Congress engage in
back-and-forth negotiations and related communications over
the substance of potential legislation, Congress is plainly
“represent[ing] an interest of its own”; otherwise, there would
be no cause to negotiate. Klamath, 532 U.S. at 11. The
members of Congress and their staffs certainly had
“obligations to truth and [their] sense of what good judgment
calls for.” Id. But Klamath makes clear those must be the
consultant’s “only obligations,” and that is not true here. Id.
This case meaningfully differs from cases like McKinley,
647 F.3d 331, in which this Court held, after Klamath, that
communications between the Board of Governors of the
Federal Reserve System (an agency) and the Federal Reserve
Bank of New York (a private corporation) about a loan were
protected by the consultant corollary. The Reserve Bank was
an “operating arm” of the Board and, although it had a duty to
develop its own view of whether the loan should be made, it
did not “represent an interest of its own, or the interest of any
other client,” when it did so. Id. at 337 (quoting Klamath, 532
U.S. at 11). For the reasons described above, the negotiations
here over the shape of potential legislation between the
agencies and Congress are not analogous.
The district court, for its part, recognized that “the records
at issue would lose their Exemption 5 protection” if—as we
hold today—Klamath requires that the “non-agency
interlocutor must bring no divergent interest to bear.” Am.
Oversight, Inc., 2022 WL 1719001, at *13. The government
resists that conclusion, but its arguments are mistaken.

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21
As it argued in the district court, the government insists
that Congress was not “self-interested” in the relevant sense
because the agencies were part of the Trump Administration
and communicated with “like-minded allies in Congress” who
“shared the common goal of enacting health care reform
legislation.” Gov’t Br. 24–25. Our dissenting colleague
endorses this argument. Dissenting Op. 12–14. But that
argument misunderstands the inquiry. The question for
purposes of the consultant corollary is not whether the agency
and non-agency share a common goal or interest at some level
of generality. The question, instead, is whether the outsider is
disinterested—whether it comes to the table with no obligation
or stake in the outcome of an agency’s process other than a duty
to provide good advice to the agency, just as the agency’s own
personnel is expected to. Klamath, 532 U.S. at 11–12. Indeed,
in Klamath the government acted as trustee for the Tribes and
indisputably had substantially common goals and interests, but
the Tribe’s independent interest in the water-allocation
proceeding disqualified its communications from Exemption
5’s protection. Id. at 5 (agency “filed claims on behalf of the
Klamath Tribe alone in an Oregon state-court adjudication
intended to allocate water rights”). Similarly, here, a health
insurance company could have shared the administration’s
goal of enacting healthcare reform legislation but could not
qualify as an “intra-agency” consultant given its independent
financial interest in the substance of any legislative reform.
The government and dissent also note that members of
Congress, like the President, take oaths to defend the
Constitution of the United States. Gov’t Br. 24; Dissenting Op.
12. If we declared this common obligation enough to trigger
Exemption 5, we would be rewriting the statute to cover all
“intergovernmental” communications rather than all “inter-
agency or intra-agency” ones. The Supreme Court has
cautioned against “taking a red pen to the [FOIA] statute” by

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22
“‘cutting out some’ words and ‘pasting in others.’” Milner,
562 U.S. at 573 (quoting Elliott v. U.S. Dep’t of Agric., 596
F.3d 842, 845 (D.C. Cir. 2010)).
At bottom, the government bore the burden of establishing
that Exemption 5 applies. Ancient Coin Collectors Guild v.
U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011). Yet it
did not submit any evidence showing that the relevant
congressmembers and their staffs were functionally acting as
agency employees. Instead, as we have explained, the record
in this case shows that those who communicated with HHS and
OMB about potential healthcare reform legislation had an
independent stake in the matter.
The dissent disputes this analysis, asserting that it should
be dispositive that American Oversight introduced “no
evidence” to show this independent stake, Dissenting Op. 13,
and failed to properly dispute before the district court the
agencies’ factual claim that they and Congress “shared a
common interest in enacting health care reform legislation,” id.
at 13–14; see J.A. 214–15.
That assertion ignores the essential aspects of our
reasoning. As we have explained, the government bore the
burden to show Exemption 5’s applicability. It chose to submit
evidence relevant to its preferred legal rule but did not
introduce evidence that could meet its burden under the reading
of Klamath we endorse today, even though American
Oversight advocated for that rule below. And the evidence the
government did introduce shows the disqualifying independent
stake. See supra at 19–21. Indeed, the district court itself,
though it adopted the government’s rule, recognized that
American Oversight would prevail on this record if American
Oversight’s reading of Klamath governed. See Am. Oversight,
Inc., 2022 WL 1719001, at *13.

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23
The communications at issue do not qualify as “intra-
agency memorandums or letters” under Exemption 5.
V
American Oversight also appeals the district court’s grant
of summary judgment to HHS on the adequacy of its search for
responsive records. Our review is de novo. Reps. Comm. for
Freedom of the Press, 3 F.4th at 361.
HHS bears the burden of showing “beyond material doubt
that its search was ‘reasonably calculated to uncover all
relevant documents.’” Valencia-Lucena v. U.S. Coast Guard,
180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. U.S.
Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “The
adequacy of the search” turns on “a standard of reasonableness
and depends . . . upon the facts of each case.” Weisberg v. U.S.
Dep’t of Just., 745 F.2d 1476, 1485 (D.C. Cir. 1984). An
agency can meet that burden by submitting “reasonably
detailed, nonconclusory affidavits,” id., that explain “the scope
and method of the search [it] conducted,” Morley v. CIA, 508
F.3d 1108, 1121 (D.C. Cir. 2007) (quotation marks omitted).
These affidavits are accorded a presumption of good faith that
cannot be rebutted by “speculative claims about the existence
and discoverability of other documents.” Ground Saucer
Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). Even
otherwise-adequate affidavits, however, can be rebutted by
“positive indications of overlooked materials.” Valencia-
Lucena, 180 F.3d at 327 (quotation marks omitted).
Based on the specific facts before us, we conclude that
HHS failed to meet its burden and that American Oversight is
entitled to summary judgment on this issue.
American Oversight’s FOIA request sought records
“relating to health care reform.” J.A. 131. HHS used three
search terms in its efforts to locate responsive documents:

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24
“health care reform,” “ACA,” and “AHCA.” J.A. 122–23
¶¶ 16–17. “ACA” stands for Affordable Care Act, the
healthcare law then in effect. “AHCA” stands for American
Health Care Act, the name of the primary bill then under
consideration on Capitol Hill. In American Oversight’s view,
HHS should also have searched for the unabbreviated names
of those statutes, plus the terms “Obamacare” and “repeal and
replace.” American Oversight requested an additional search
along these lines, but HHS maintained its view that it had
conducted an adequate search. See J.A. 51.
Agencies are not invariably required to search their
records using the terms proposed by the FOIA requestor, as
long as the search terms they do use are “reasonably calculated
to uncover all relevant documents,” Valencia-Lucena, 180 F.3d
at 325. See, e.g., Physicians for Hum. Rts. v. U.S. Dep’t of Def.,
675 F. Supp. 2d 149, 164 (D.D.C. 2009); Liberation
Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d 137, 146
(D.D.C. 2015) (quoting Physicians for Hum. Rts., 675 F. Supp.
2d at 164).
At the same time, as several district courts in this Circuit
have concluded, this discretion does not permit an agency to
omit from their search obvious alternative terms without a
detailed justification. See, e.g., Am. Oversight v. OMB, 613 F.
Supp. 3d 219, 227–28 (D.D.C. 2020) (searching “FBI HQ” and
“FBI Headquarters” but not “JEH,” the abbreviation for the J.
Edgar Hoover FBI building, is unreasonable); Bagwell v. U.S.
Dep’t of Justice, 311 F. Supp. 3d 223, 230 (D.D.C. 2018)
(“Because it is likely that emails concerning the investigation
would use ‘PSU’ or ‘Penn State’ rather than the full name of
the University, the Department’s search was not reasonably
calculated to find all responsive emails.”); Gov’t
Accountability Project v. U.S. Dep’t of Homeland Sec., 335 F.
Supp. 3d 7, 11–12 (D.D.C. 2018) (similar). Thus, even if the

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25
search terms used “reveal many [documents] responsive” to a
request, it is possible that “omitting from the search an
alternative name by which the subject of the search is known
renders the search inadequate.” Utahamerican Energy, Inc. v.
Mine Safety & Health Admin., 725 F. Supp. 2d 78, 84 (D.D.C.
2010).
That is the situation here. The agency’s affidavit
sufficiently explains why it searched for “health care reform,”
“ACA,” and “AHCA.” HHS says it searched “health care
reform” because it appeared in American Oversight’s request.
J.A. 122 ¶ 16. And it searched “ACA” and “AHCA” because
those laws “represented the state of the health care reform
legislative process at the time[,] and the search terms are
frequently used in their abbreviated forms in the day-to-day
operations of [the] Department.” J.A. 123 ¶ 17.
But on the terms left out of the search, the agency’s
affidavit is vague and conclusory. HHS’s declarant explained
that the abbreviated versions “are frequently used in the day-
to-day operations” within the agency, “as opposed to the
unabbreviated versions,” and states that those terms “were
therefore reasonably likely to locate responsive records.” J.A.
122 ¶ 16. The declarant continued that “[i]t is reasonably likely
that the use of more general terms would have resulted in an
excessive number of records that would have been labeled
‘potentially responsive,’ which [HHS] would have had to
review and process, without a meaningful increase in the
likelihood of identifying additional records that were actually
responsive.” Id. The affidavit also states that HHS
“determined that any potentially responsive records” would
“contain one or more” of its chosen search terms. J.A. 123
¶ 17.
That explanation does not constitute “reasonabl[e] detail”
as to why HHS limited its search and omitted obvious

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26
alternative terms for the subject matter of American
Oversight’s request. Valencia-Lucena, 180 F.3d at 327. The
statement that it is “reasonably likely” that using “more general
terms” would result in “excessive” records is, at best, vague.
Terms like the full statute names and the phrase “Obamacare”
and even “repeal and replace” are no more general than the
acronyms HHS used. Moreover, the statement that
abbreviations like ACA and AHCA are “frequently used” does
nothing to dispel the commonsense point that the
unabbreviated forms and common terms like “Obamacare” or
“repeal and replace” would also have been used often, even if
not as frequently as HHS’s chosen terms. In the end, the
agency offered no explanation for omitting those familiar terms
except for its concerns about overbroad results. HHS “may not
conduct an underinclusive search based on nothing more than
the unexplained and conclusory assertion that a broader
search[] might have been unduly burdensome.” Shteynlyuger
v. Ctrs. for Medicare & Medicaid Servs., No. 20 Civ. 2982
(RDM), 2023 WL 6389139, at *16 (D.D.C. Sept. 30, 2023).
We are therefore left with “material doubt” that the “search was
‘reasonably calculated to uncover all relevant documents.’”
Valencia-Lucena, 180 F.3d at 325 (quoting Truitt, 897 F.2d at
542).
Moreover, though not required given the inadequacy of
HHS’s affidavit, American Oversight has provided “positive
indications of overlooked materials” to rebut the affidavit. Id.
at 327 (quotation marks omitted). American Oversight
submitted transcripts and identified other documents showing
that HHS employees, then-HHS Secretary Tom Price, and
members of Congress used the unabbreviated statute names
and the terms “Obamacare” and “repeal and replace.” Many
of these statements use those terms without pairing them with
the terms HHS included in its search. See, e.g., J.A. 344, 353,

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27
356–58, 360–61, 365, 368, 369, 371, 375–76, 378–79, 381,
386–89, 393–94, 397, 414, 416, 428–429, 431, 435.
American Oversight requests records of communications
involving these individuals and others. And there is no reason
to doubt that HHS and members of Congress and their staffs
also used these terms in private communications. With that
context, HHS’s conclusory statement that the abbreviations
were “frequently used in the day-to-day operations” at HHS,
“as opposed to the unabbreviated versions,” does not suffice.
J.A. 122 ¶ 16. We therefore conclude that HHS’s search must
include the unabbreviated statutory references and the terms
“Obamacare” and “repeal and replace.”
VI
Accordingly, we reverse the district court’s grant of
summary judgment to HHS and OMB on the applicability of
Exemption 5 to the records at issue and to HHS on the
adequacy of its search; direct that American Oversight’s
motion for summary judgment be granted insofar as the
communications between the agencies and Congress are not
covered by Exemption 5, and HHS’s search is inadequate; and
remand for further proceedings consistent with our opinion.
So ordered.

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WILKINS , Circuit Judge, concurring in part and dissenting
in part: The principal question in this case is whether
confidential communications about potential and pending
legislation between members of Congress and officials within
the Executive Branch should be considered intra-agency
communications within the meaning of the Freedom of
Information Act (FOIA), and thus exempt from disclosure to
the public. The text, purpose, structure, and legislative history
of the FOIA statute support application of the exemption. The
ramifications of the majority’s contrary interpretation of FOIA
are actually quite breathtaking. The majority’s rule will chill
communications between Congress and the Executive, stymie
the working relationship between Congress and the Executive,
and inhibit the President’s ability to perform effectively the
core Article II duty of recommending legislation to the
Congress. I therefore respectfully dissent.1
I.
We start of course with the statutory text. FOIA provides
that each agency must make its records available to members
of the public upon request, subject to certain exemptions. 5
U.S.C. §§ 552(a)–(b). At issue in this case is Exemption Five,
also called the deliberative process privilege, which exempts
from disclosure those “inter-agency or intra-agency
memorandums or letters that would not be available by law to
a party other than an agency in litigation with the agency[.]” 5
U.S.C. § 552(b)(5). Because the definition of “agency” does
not include Congress, 5 U.S.C. § 551(1)(A), the majority
reasons that deliberative communications to or from Congress
cannot constitute “intra-agency” communications of an
Executive branch agency unless the Congress can be construed
1 I agree with the analysis of my colleagues on the adequacy of
search issues.

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2
as a consultant, or agent, of that executive agency.2 Maj. Op.
10–17.
But the question does not depend solely upon the
construction of the term “agency,” because there is more
relevant statutory text. Congress also specified in FOIA that
“[t]his section is not authority to withhold information from
Congress.” 5 U.S.C. § 552(d). We have previously explained
that “the obvious purpose” of this language was for “the
Congress to carve out for itself a special right of access to
privileged information not shared by others.” Murphy v. Dep't
of Army, 613 F.2d 1151, 1155–56 (D.C. Cir. 1979). As a result,
we rejected a claim that the Army waived the deliberative
process privilege (and Exemption Five protection) because it
provided a deliberative document to a member of Congress. Id.
To hold otherwise “would effectively transform section 552(c)
into a congressional declassification scheme, a result supported
neither by the legislative history of the Act, nor by general legal
principles or common sense.” Id. at 1156. [Section 552(c) is
now Section 552(d).] See Appellee Br. 25 (“It would
undermine the statutory scheme if an agency’s decision to
exchange privileged and confidential communications with
Congress resulted in the public gaining access to materials that
would have remained confidential if they had been solely
exchanged within the agency, or solely exchanged within
Congress,” citing Murphy).
As we explained, if “every disclosure to Congress [were]
tantamount to a waiver of all privileges and exemptions,
executive agencies would inevitably become more cautious in
2 As the majority acknowledges, there is no contention that a party
in litigation with an Executive branch agency would be able to obtain
the requested documents in discovery. See Maj. Op. 5–6.

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3
furnishing sensitive information to the legislative branch [–] a
development at odds with public policy which encourages
broad congressional access to governmental information.”
Murphy, 613 F.2d at 1156. We expressly followed Murphy’s
reasoning in Rockwell Int'l Corp. v. U.S. Dep't of Just., 235
F.3d 598, 604 (D.C. Cir. 2001), where we held that the Justice
Department did not waive Exemption Five protection by
sharing deliberative documents with a Congressional
subcommittee.
As we noted in Murphy, the final House Committee report
prior to the passage of FOIA specifically stated that the purpose
of Section 552(d) was to ensure that “a law controlling public
access has absolutely no effect upon congressional access to
information.” 613 F.2d at 1156 n.12 (quoting H.R. Rep. No.
1497, 89th Cong., 2d Sess. 11–12 (1966)). This statement is
quite significant, because during hearings on the legislation,
several executive and independent agencies noted they had
confidentially shared deliberative documents with Congress
for decades, and most of those agencies expressed concern
about the potential for public disclosure of those records if
FOIA were enacted.3 This Committee Report shows that
3 See Hearings Before the Senate Judiciary Committee,
Subcommittee on Administrative Practice and Procedure, on S.
1666, 88th Cong. 1st Sess., 318–19 (Oct. 28–31, 1963) (Securities
and Exchange Commission noted that it treated as confidential and
not subject to disclosure “[l]etters or reports to Members of
Congress, committees of Congress, and other Government agencies
or officials, unless and until such documents are made public by such
recipients”); Hearings Before the House Government Operations
Committee, Subcommittee on Government Information and Foreign
Operations on H.R. 5012 et al., 89th Cong., 1st. Sess., 233 (March
30-31; April 1–2, and 5, 1965) [hereinafter “1965 House Hearings”]
(Atomic Energy Commission treats as confidential “correspondence
with Members of Congress or congressional committees,” except if

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4
Congress, through Section 552(d), rejected that construction of
the statutory text. As Representative Dante Fascell, a sponsor
of the legislation retorted, such concerns “could not be further
from the fact[,] because “[c]ertainly a communication between
the Treasury Department and the Congress . . . would be
protected by a provision of the legislation which protects
interagency messages on matters of policy.” 1965 House
Hearings at 174. As Representative Fascell clarified, “[i]f the
particular item of information is of the type which must be kept
within the official Government family – and that includes the
Congress – it should be withheld from all the public.” Id.
(emphasis added). As another sponsor, then-Representative
Donald Rumsfeld explained, “[t]he very special relationship
between the executive and legislative branches is not affected
by this legislation.” 89 Cong. Rec. 13020 (June 20, 1966).
Representative John E. Moss, remembered as the “father” of
FOIA, see Robert Mcg. Thomas Jr., “John E. Moss, 84, Is
Dead; Father of Anti-Secrecy Law,” N.Y. Times, Dec. 6, 1997,
responded to concerns about potential public disclosure of a
deliberative Treasury Department report to Congress by
declaring that “[the report] is an internal memorandum covered
here under ‘interagency or intra-agency memoranda or letters
dealing solely with matters of law or policy,’” and thus covered
by the language of Exemption Five in the then-pending bill.
1965 House Hearings at 71–72; see also id. at 3 (setting forth
language of the bill).
Interpreting Section 552(d) to mean that Exemption Five
should not be construed in a manner to upset the historic
relationship between the Executive and Congress comports
released by Congress or if related to a licensing, adjudication or a
rulemaking); id. at 253 (Interstate Commerce Commission “ha[s]
always believed that letters from the Commission to congressional
committees or to individual Members of the Congress should not be
disclosed by the Commission”).

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5
with the structure and purpose of FOIA. Congress, in its
wisdom, exempted its own records and communications
(deliberative or otherwise) from public disclosure through
FOIA. See 5 U.S.C. § 551(1)(A) (“‘agency’ . . . does not
include . . . the Congress”); see also id. § 552(f)(1) (defining
“agency” pursuant to section 551(1)). It makes no sense that
this same Congress intended to disclose its own confidential,
deliberative communications with executive agencies, while
simultaneously exempting confidential, deliberative
communications sent from one executive agency to another.
Nor does it make sense that Exemption Five would protect a
deliberative document sent from one executive agency to
another – even though both agencies generally fall within the
scope of FOIA – but it would not protect the same document
from disclosure if either agency shared the document with
Congress, even though Congress is not subject to FOIA.
The anomalies of the majority’s logic do not end there.
Congress also exempted the President and his or her top aides
from the definition of agency. See Kissinger v. Reporters
Committee for Freedom of the Press, 445 U.S. 136, 156 (1980)
(construing then-5 U.S.C. § 552(e), now § 552(f)). Yet no one
would seriously contend that an agency’s deliberations and
recommendations lose Exemption Five protection when sent to
the President or a top aide, based on a construction that the
communications were neither sent from one “agency” to
another “agency,” nor kept within the same “agency.” See EPA
v. Mink, 410 U.S. 73, 85 (1973) (it was “beyond question” that
unclassified documents attached to a report provided to the
President by an interdepartmental group called the “Under
Secretaries Committee” were “’inter-agency or intra-agency’
memoranda or ‘letters’” that fell within Exemption Five); see
also Judicial Watch, Inc. v. Dept. of Energy, 412 F.3d 125,
129–31 (D.C. Cir. 2005) (finding “inconceivable” that
Congress intended for Exemption Five to protect deliberative

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6
documents of “agency” officials overseen by the President, but
“not [such documents] when the decision is to be made by the
President himself and those same agency officials are acting in
aid of his decision-making processes”).
Klamath is not to the contrary. See Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001).
While the Court held that the terms “intra-agency” and “inter-
agency” must be given “independent vitality,” id. at 12, as the
government argues, see Appellee Br. 18, the Court also
acknowledged that those terms could reasonably be construed
as not necessarily having cramped, wooden meanings:
It is textually possible and … in accord with the
purpose of the provision, to regard as an intra-
agency memorandum one that has been
received by an agency, to assist it in the
performance of its own functions, from a person
acting in a governmentally conferred capacity
other than on behalf of another agency—e.g., in
a capacity as employee or consultant to the
agency, or as employee or officer of another
governmental unit (not an agency) that is
authorized or required to provide advice to the
agency.
Klamath, 532 U.S. at 9–10 (quoting U.S. Dep’t of Justice
v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting))
(emphases added). Because Klamath involved a report
prepared by “outside consultants hired by [an agency],” id. at
10, the Court resolved only the question whether
communications of such outside consultants fall within
Exemption Five. Klamath had no occasion to resolve whether
Exemption Five covered communications from an “employee
or officer of another governmental unit (not an agency) that is

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authorized or required to provide advice to the agency,” which
the Court acknowledged was another “textually possible” way
non-agency communications could nonetheless come within
the scope of Exemption Five. 531 U.S. at 10, 12. Klamath also
had no occasion to consider how Section 552(d) impacts the
construction of Exemption Five specifically, or how FOIA
impacts the relationship between the Executive and members
of Congress generally.
In other words, Klamath did not “eviscerate” our holdings
in Murphy or Rockwell interpreting Section 552(d) and its
impact on the relationship between Congress and the
Executive, because the Court did not touch upon those issues.
See Maj. Op. 13 (citing Dellums v. U.S. Nuclear Reg. Comm’n,
863 F.2d 968, 978 n.11 (D.C. Cir. 1988)). Murphy and
Rockwell are good law, and we are bound to follow that
precedent. See LaShawn A v. Barry, 87 F.3d 1389, 1395 (D.C.
Cir. 1996) (en banc). Further, because Klamath involved
communications between an executive agency and a non-
governmental entity, the Court’s holding does not necessarily
apply to communications between an executive agency and
Congress. I share my colleagues’ concerns that we must be
faithful to Supreme Court precedent, but I do not believe that
concern requires applying the consultant corollary doctrine to
Congress, particularly given Congress’s intent that FOIA’s
passage would preserve, rather than impair, its relationship
with the Executive.4 Deploying the consultant corollary
doctrine in these circumstances seems rather like forcing a
square peg into a round hole.
4 I note that we have repeatedly held that Ryan v. Dept. of Justice,
617 F.2d 781 (D.C. Cir. 1980) and subsequent precedent applying
Ryan’s reasoning have not been overruled by Klamath. See Judicial
Watch, Inc. v. Dept. of Energy, 412 F.3d 125, 129–31 (D.C. Cir.
2005); Nat’l Inst. of Military Justice v. U.S. Dept. of Defense, 512
F.3d 677, 679–87 (D.C. Cir. 2008).

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The majority contends that my reasoning is “entirely
different” than the government’s, see Maj. Op. 15-17, but I beg
to differ. As have I, the government cited Justice Scalia’s
observation, quoted in Klamath, that “it is both ‘textually
possible and much more in accord with the purpose’ of
Exemption [Five] to read the term ‘intra-agency memorandum’
more expansively.” Appellee Br. 18 (quoting Julian, 486 U.S.
at 18 n.1 (Scalia, J. dissenting). As have I, the government
cited Murphy and Rockwell to argue “[i]t would undermine the
statutory scheme if an agency’s decision to exchange
privileged and confidential communications with Congress
resulted in the public gaining access to materials that would
have remained confidential if they had been solely exchanged
within the agency, or solely exchanged within Congress.”
Appellee Br. 25. Based upon all of this, the government
articulated the governing test as primarily focused on “whether
the communications were ‘part and parcel of the agency’s
deliberative process.’” Appellee Br. 20 (quoting Rockwell, 235
F.3d at 604). See also id. at 21 (documents at issue fell within
Exemption Five because “the agencies communicated
confidentially with members of Congress and their staff who
possessed relevant views and other non-public information that
would help the Executive Branch perform Executive Branch
functions.”) (emphasis added); id. at 27 (“[t]he dividing line for
Congressional communications is whether they are ‘part and
parcel of the agency’s deliberative process’”) (quoting Dow
Jones & Co. v. U.S. Dep’t of Justice, 917 F.2d 571, 575 (D.C.
Cir. 1990)) (emphasis in the brief). While the government did
not say explicitly, as have I, that the consultant corollary
doctrine is completely ill-fitted to Executive-Congress advice,
there is very little daylight between the government’s bottom-
line position and mine, based on our respective understandings
of Klamath and the precedent in this circuit.

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To that end, I note that the majority has no response to
Klamath’s observation that it is “textually possible” for
Exemption Five to cover communications from an “employee
or officer of another governmental unit (not an agency) that is
authorized or required to provide advice to the agency.” 531
U.S. at 9–10, 12. Furthermore, while I agree with the majority
that this case is not explicitly about whether the deliberative
process privilege has been waived, that does not make our
understanding of the purpose of Section 552(d), as explained
in Murphy and Rockwell, irrelevant. The majority appears to
agree that Section 552(d) demonstrates that Congress did not
intend waiver of the privilege when an executive agency
provides draft bill language to a member of Congress,
presumably even if it were given to a member of Congress from
a different party who does not support the bill. See Maj. Op.
16. Yet, the majority holds that if a Congressmember fully
supportive of the draft bill sends it back to the agency with
proposed edits and comments to aid the President’s
deliberations, then that communication falls completely
outside the privilege, effectively subjecting the draft bill to
public disclosure. Why would Congress intend to protect its
right to receive information confidentially from the Executive,
but not intend to protect its right to advise the Executive
confidentially in response to the information it receives? How
is such an outcome consistent with the fact that Congress did
not intend for FOIA to impact the “very special relationship”
between Congress and the Executive? The majority has no
answers. Moreover, unless the Executive believes that
members of Congress are like potted plants and will not
provide their own feedback and advice in response to
information given to them, the Executive will be disinclined to
share sensitive deliberations with Congress. This is precisely
the opposite effect intended by FOIA, as expressed in Section
552(d) and explained in Murphy and Rockwell.

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The majority’s holding has significant constitutional
implications. Article II, Section 3 provides that the President
“shall from time to time give to the Congress Information of
the State of the Union, and recommend to their Consideration
such Measures as he shall judge necessary and expedient. . . .”
This provision, called the Recommendation Clause, requires
“the [P]resident to lay before [C]ongress all facts and
information, which may assist their deliberations” and thus to
“point out the evil, and to suggest the remedy.” 3 J. Story,
Commentaries on the Constitution of the United States § 1555,
p. 413 (1833). In order for the President to “initiate and
influence legislative proposals,” Clinton v. City of New York,
524 U.S. 417, 438 (1998), he and his emissaries need to be able
to consult Congress. The President cannot make effective
recommendations in a vacuum; without a good understanding
of how Congress sees the problem and what its members will
(or will not) support, he cannot know what, if any, legislation
is worth expending valuable political capital to recommend.
For good reason, we have found these types of internal
communications to be part of the Executive’s deliberative
process in the past. See Access Reports v. Dept of Justice, 926
F.2d 1192, 1196–97 (D.C. Cir. 1991) (holding that staff
memorandum related to “the Department's study of how to
shepherd the FOIA bill through Congress” is covered by
Exemption 5, and the exemption also protects records
“contributing to deliberations about whether to introduce
legislation in the first instance”).
Here, the district court found, and it appears undisputed on
appeal, that the documents at issue involved discussions
between “members of Congress and congressional staff of the
Republican Party who shared an interest with agencies in the
current Republican administration in working to repeal the
[Affordable Care Act] and replace it with the health care reform
legislation that was under consideration.” J.A. 609 (quoting an

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executive official’s declaration). These discussions fall
squarely within the President’s responsibilities under the
Recommendation Clause. A ruling that these communications
fall outside of Exemption Five will force the President to either
make uninformed, less effective recommendations or to fulfill
this constitutional duty in a fishbowl. Neither of those
outcomes is consistent with the FOIA statute or the
Constitution.
It is no answer to say that Congress should not be
considered to have consulted the President in this case because
Congress has an “independent stake” in the legislation. See
Maj. Op. 17–23. One branch of government is impotent
without the other. The President can recommend a bill, but a
member of Congress has to introduce it. Congress can pass a
bill, but absent extraordinary circumstances, it cannot become
law without the President’s signature. To get a bill through
Congress, the President must advocate for the bill, both
publicly and privately during Congressional consideration.
The interests of the Congressmembers communicating with
executive officials in this case were more aligned than not,
especially since these particular Congressmembers shared the
President’s overall agenda with regard to health care
legislation. Furthermore, a ruling that Congress consulted the
President within the meaning of Exemption Five does not
diminish Congress as a co-equal branch. Members of this
Court consult each other daily during their deliberations; none
of that portends that any one judge is subordinate to the other.
So too with Congress and the Executive.
In sum, I do not believe that Klamath’s conflict of interest
holding controls the key question in this case: whether the
congressional officials “[are] authorized or required to provide
advice to the agency.” Klamath, 532 U.S. at 10 (quoting
Julian, 486 U.S. at 18 n.1). Because members of Congress are

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12
obviously authorized to provide advice to the Executive, I
would find that these communications fall within Exemption
Five.
II.
Even if Klamath’s consultant corollary test governed this
case, I nonetheless believe it is an error to conclude there is a
fatal conflict of interest present in these factual circumstances.
Klamath held only that “the intra-agency condition
excludes, at the least, communications to or from an interested
party seeking a Government benefit at the expense of other
applicants,” 532 U.S. at 12 n.4, such as communications by a
party seeking “a claim . . . that is necessarily adverse to the
interests of competitors,” id. at 14. Members of Congress are
not “seeking government benefits” or seeking “claims” from
the government; they are the government.
Further, Klamath explained that Exemption Five can apply
where a consultant “functions just as an employee would be
expected to do” because the consultant’s “only obligations are
to truth and its sense of what good judgment calls for. . . .” 532
U.S. at 11. We have no basis to hold that members of Congress
and their staff do not have an “obligation to the truth and . . .
good judgment,” as described in Klamath. Just as the President
is bound by oath to “faithfully execute[]” his duties and support
and defend the Constitution, U.S. Const. art. II, § 1, cl. 7,
members of Congress take a similar oath, U.S. Const. art. VI,
cl. 3.
In that vein, I am compelled to point out that appellants
introduced absolutely no evidence in the district court to
support their arguments about a conflict of interest. There was
no declaration from a current or former member of Congress, a

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current or former staffer, or an expert witness (like a political
science professor). The government asserted, as an undisputed
fact, that “[the Department of Health and Human Services and
the Office of Management and Budget] and the members of
Congress and their staff who exchanged the emails at issue in
this case shared a common interest in enacting health care
reform legislation.” 1:17-cv-00827-EGS Document 30-4 at 4–
5. Critically, as required by the federal rules, the government
backed up this factual assertion with evidence (in the form of
declarations from senior HHS and OMB officials). Id. See
also Fed. R. Civ. P. 56(c)(1). The plaintiff asserted, without
citing any evidence and adverting only to their briefs, that they
disputed this fact, id., but that was plainly insufficient to
dispute it. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–27
(1986) (construing Fed. R. Civ. P. 56). Accordingly, the
District Court credited the evidence that Congress and agencies
shared a common interest. J.A. 609. Thus, the plaintiff’s
argument that Congress had an actual conflict of interest with
the Executive has no support in the evidentiary record before
us.
Undeterred by the lack of evidence, the majority not only
finds that appellants have placed a fact in dispute which they
failed to properly dispute; the majority proceeds to the next step
to hold that appellants indisputably proved the conflict of
interest, even without evidence. (Of course, if plaintiff had
properly disputed the conflict-of-interest issue by submitting
evidence to the district court, it could have held a hearing to
resolve the disputed fact, and we would then review that
finding. See Pavement Coatings Tech. Council v. U.S.
Geological Surv., 995 F.3d 1014, 1024 (D.C. Cir. 2021).) My
colleagues can say they may take judicial notice that Congress
and the Executive are rival branches of government; but if we
go down that road, I would think we should also take judicial
notice that members of Congress often share the interests of the

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President on specific pieces of legislation, particularly when
the President is a member of the same party. Cf. Mistretta v.
United States, 488 U.S. 361, 408 (1989) (“Our principle of
separation of powers anticipates that the coordinate Branches
will converse with each other on matters of vital common
interest.”).
* * *
When Congress passed FOIA in 1966, the historic
recognition of the privilege against disclosure of internal
governmental deliberations was to remain intact. Congress
also expressed that FOIA was not intended to affect Congress’s
ability to obtain information from the Executive or share
information with the Executive. When executive agencies or
Congress correspond with members of the public, there is no
expectation of confidentiality in those communications, so it
only makes sense to treat those communications differently
than communications between different branches of the
government (where there is such an expectation). Further, an
interested member of the public has no right or expectation that
they can advise executive officials confidentially and ex parte,
which is yet another reason to treat a private party’s
communications differently than those of a member of
Congress (who has a valid expectation that she can
confidentially consult the Executive, and do so ex parte). For
all those reasons, the text, structure, purpose and history of
FOIA support Klamath’s holding that Exemption Five only
applies to a private party’s communications with an agency if
that private party is a consultant to the executive agency and
has no conflicting private interest in the decision to be rendered
by the agency.
On the other hand, FOIA was not intended to grant citizens
access to any information that had been previously subject to

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15
privilege. The executive officials and Congressmembers
involved in this case had an expectation that their deliberations
and communications with each other would be confidential,
and it is conceded there is no history of these types of
communications being subject to discovery by private citizens
in civil or criminal litigation. In other words, nothing about the
nature, circumstances, or history of communications between
the Executive and Congress supports extending the conflict of
interest holding of Klamath to the present context.
To sum up, the majority rule 1) violates the text and
purpose of Section 552(d) with respect to Congress’s right to
share information with, and receive information from, the
Executive, 2) impedes the Constitutional duty of the Executive
to consult with Congress on legislation, 3) effectively creates a
waiver of the deliberative process privilege when two co-equal
branches consult each other, and 4) grants public access to
confidential deliberative documents that members of the public
could not obtain if they were in litigation with the Executive.
Klamath does not compel such a sweeping change to the status
quo. This is not an instance where “Congress has not enacted
the FOIA exemption the [agencies] desire,” Maj. Op. 17
(quoting Milner v. Dept. of Navy, 562 U.S. 562, 581 (2011)).
This is an instance where the majority regrettably fails to
harmonize Section 552(d) and Exemption Five to implement
Congressional intent, as expressed by, among others, the
“father” of FOIA. I respectfully dissent.

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