DEPARTMENT OF THE INTERIOR et al. v. KLAMATH WATER USERS PROTECTIVE ASSOCIATION

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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2000
DEPARTMENT OF THE INTERIOR et al. v. KLAMATH
WATER USERS PROTECTIVE ASSOCIATION
certiorari to the united states court of appeals for
the ninth circuit
No. 99–1871. Argued January 10, 2001—Decided March 5, 2001
The Department of the Interior’s Bureau of Reclamation (Reclamation)
administers the Klamath Irrigation Project (Project), which uses water
from the Klamath River Basin to irrigate parts of Oregon and Califor-
nia. After the Department began developing the Klamath Project Op-
eration Plan (Plan) to provide water allocations among competing uses
and users, the Department asked the Klamath and other Indian Tribes
(Basin Tribes or Tribes) to consult with Reclamation on the matter. A
memorandum of understanding between those parties called for assess-
ment, in consultation with the Tribes, of the impacts of the Plan on
tribal trust resources. During roughly the same period, the Depart-
ment’s Bureau of Indian Affairs (Bureau) filed claims on behalf of the
Klamath Tribe in an Oregon state-court adjudication intended to allo-
cate water rights. Since the Bureau is responsible for administering
land and water held in trust for Indian tribes, it consulted with the
Klamath Tribe, and the two exchanged written memorandums on the
appropriate scope of the claims ultimately submitted by the Government
for the benefit of the Tribe. Respondent Klamath Water Users Protec-
tive Association (Association) is a nonprofit group, most of whose mem-
bers receive water from the Project and have interests adverse to the
tribal interests owing to scarcity of water. The Association filed a se-
ries of requests with the Bureau under the Freedom of Information Act
(FOIA), 5 U. S. C. § 552, seeking access to communications between the
1

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2 DEPARTMENT OF INTERIOR v. KLAMATH
WATER USERS PROTECTIVE ASSN.
Syllabus
Bureau and the Basin Tribes. The Bureau turned over several docu-
ments, but withheld others under the attorney work-product and delib-
erative process privileges that are said to be incorporated in FOIA Ex-
emption 5, which exempts from disclosure “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party
other than an agency in litigation with the agency,” § 552(b)(5). The
Association then sued the Bureau under FOIA to compel release of the
documents. The District Court granted the Government summary
judgment. The Ninth Circuit reversed, ruling out any application of
Exemption 5 on the ground that the Tribes with whom the Department
has a consulting relationship have a direct interest in the subject matter
of the consultations. The court said that to hold otherwise would ex-
tend Exemption 5 to shield what amount to ex parte communications in
contested proceedings between the Tribes and the Department.
Held: The documents at issue are not exempt from FOIA’s disclosure re-
quirements as “inter-agency or intra-agency memorandums or letters.”
Pp. 7–16.
(a) Consistent with FOIA’s goal of broad disclosure, its exemptions
have been consistently given a narrow compass. E. g., Department of
Justice v. Tax Analysts, 492 U. S. 136, 151. Pp. 7–8.
(b) To qualify under Exemption 5’s express terms, a document must
satisfy two conditions: its source must be a Government agency, and it
must fall within the ambit of a privilege against discovery under judicial
standards that would govern litigation against the agency that holds the
document. This Court’s prior Exemption 5 cases have addressed the
second condition, and have dealt with the incorporation of civil discovery
privileges. So far as they matter here, those privileges include the
privilege for attorney work product and the so-called “deliberative proc-
ess” privilege, which covers documents reflecting advisory opinions, rec-
ommendations, and deliberations that are part of a process by which
Government decisions and policies are formulated. NLRB v. Sears,
Roebuck & Co., 421 U. S. 132, 150. The point of Exemption 5 is not to
protect Government secrecy pure and simple, and the Exemption’s first
condition is no less important than the second; the communication must
be “inter-agency or intra-agency,” 5 U. S. C. § 552(b)(5). “[A]gency” is
defined to mean “each authority of the Government,” § 551(1), and in-
cludes entities such as Executive Branch departments, military depart-
ments, Government corporations, Government-controlled corporations,
and independent regulatory agencies, § 552(f). Although Exemption 5’s
terms and the statutory definitions say nothing about communications
with outsiders, some Courts of Appeals have held that a document pre-
pared for a Government agency by an outside consultant qualifies as an

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3 Cite as: 532 U. S. 1 (2001)
Syllabus
“intra-agency” memorandum. In such cases, the records submitted by
outside consultants played essentially the same part in an agency’s de-
liberative process as documents prepared by agency personnel. The
fact about the consultant that is constant in the cases is that the consult-
ant does not represent its own interest, or the interest of any other
client, when it advises the agency that hires it. Its only obligations are
to truth and its sense of what good judgment calls for, and in those
respects it functions just as an employee would be expected to do.
Pp. 8–11.
(c) The Department misplaces its reliance on this consultant corollary
to Exemption 5. The Department’s argument skips a necessary step,
for it ignores the first condition of Exemption 5, that the communication
be “intra-agency or inter-agency.” There is no textual justification for
draining that condition of independent vitality. Once the intra-agency
condition is applied, it rules out any application of Exemption 5 to tribal
communications on analogy to consultants’ reports (assuming, which the
Court does not decide, that these reports may qualify as intra-agency
under Exemption 5). Consultants whose communications have typi-
cally been held exempt have not communicated 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 consult-
ant. In that regard, consultants may be enough like the agency’s own
personnel to justify calling their communications “intra-agency.” The
Tribes, on the contrary, necessarily communicate with the Bureau with
their own, albeit entirely legitimate, interests in mind. While this fact
alone distinguishes tribal communications from the consultants’ exam-
ples recognized by several Circuits, the distinction is even sharper, in
that the Tribes are self-advocates at the expense of others seeking bene-
fits inadequate to satisfy everyone. As to those documents bearing on
the Plan, the Tribes are obviously in competition with nontribal claim-
ants, including those irrigators represented by the respondent. While
the documents at issue may not take the formally argumentative form
of a brief, their function is quite apparently to support the tribal claims.
The Court rejects the Department’s assertion that the Klamath Tribe’s
consultant-like character is clearer in the circumstances of the Oregon
adjudication, where the Department merely represents the interests of
the Tribe before a state court that will make any decision about the
respective rights of the contenders. Again, the dispositive point is that
the apparent object of the Tribe’s communications is a decision by a
Government agency to support a claim by the Tribe that is necessarily
adverse to the interests of competitors because there is not enough
water to satisfy everyone. The position of the Tribe as Government
beneficiary is a far cry from the position of the paid consultant. The

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4 DEPARTMENT OF INTERIOR v. KLAMATH
WATER USERS PROTECTIVE ASSN.
Opinion of the Court
Court also rejects the Department’s argument that compelled release of
the documents at issue would impair the Department’s performance of
its fiduciary obligation to protect the confidentiality of communications
with tribes. This boils down to requesting that the Court read an “In-
dian trust” exemption into the statute. There is simply no support for
that exemption in the statutory text, which must be read strictly to
serve FOIA’s mandate of broad disclosure. Pp. 11–16.
189 F. 3d 1034, affirmed.
Souter, J., delivered the opinion for a unanimous Court.
Malcolm L. Stewart argued the cause for petitioners.
With him on the briefs were Solicitor General Waxman, As-
sistant Attorney General Ogden, Deputy Solicitor General
Kneedler, Leonard Schaitman, Matthew M. Collette, John
Leshy, and Scott Bergstrom.
Andrew M. Hitchings argued the cause for respondent.
With him on the brief were Paul S. Simmons and Donald
B. Ayer.*
Justice Souter delivered the opinion of the Court.
Documents in issue here, passing between Indian Tribes
and the Department of the Interior, addressed tribal inter-
ests subject to state and federal proceedings to determine
water allocations. The question is whether the documents
are exempt from the disclosure requirements of the Free-
dom of Information Act, as “intra-agency memorandums or
*Briefs of amici curiae urging reversal were filed for the Campo Band
of Mission Indians et al. by Susan M. Williams and Gwenellen P. Janov;
and for the Klamath Tribes et al. by Tracy A. Labin, Carl Ullman, Curtis
Berkey, Thomas P. Schlosser, Reid Peyton Chambers, Jill E. Grant, Dan
Rey-Bear, Alice E. Walker, John B. Carter, Peter C. Chestnut, Rodney B.
Lewis, Stephen V. Quesenberry, and Gregory M. Quinlan.
Lucy A. Dalglish, Gregg P. Leslie, and Bruce W. Sandford filed a brief
for the Reporters Committee for Freedom of the Press et al. as amici
curiae urging affirmance.
Briefs of amici curiae were filed for the City of Tacoma, Washington,
by J. Richard Creatura; and for United South and Eastern Tribes, Inc.,
by William W. Taylor III, Michael R. Smith, and Eleanor H. Smith.

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Opinion of the Court
letters” that would normally be privileged in civil discovery.
5 U. S. C. § 552(b)(5). We hold they are not.
I
Two separate proceedings give rise to this case, the first
a planning effort within the Department of the Interior’s
Bureau of Reclamation, and the second a state water rights
adjudication in the Oregon courts. Within the Department
of the Interior, the Bureau of Reclamation (Reclamation) ad-
ministers the Klamath Irrigation Project (Klamath Project
or Project), which uses water from the Klamath River Basin
to irrigate territory in Klamath County, Oregon, and two
northern California counties. In 1995, the Department
began work to develop a long-term operations plan for the
Project, to be known as the Klamath Project Operation Plan
(Plan), which would provide for allocation of water among
competing uses and competing water users. The Depart-
ment asked the Klamath as well as the Hoopa Valley, Karuk,
and Yurok Tribes (Basin Tribes) to consult with Reclamation
on the matter, and a memorandum of understanding between
the Department and the Tribes recognized that “[t]he United
States Government has a unique legal relationship with Na-
tive American tribal governments,” and called for “[a]ssess-
ment, in consultation with the Tribes, of the impacts of the
[Plan] on Tribal trust resources.” App. 59, 61.
During roughly the same period, the Department’s Bureau
of Indian Affairs (Bureau) filed claims on behalf of the
Klamath Tribe alone in an Oregon state-court adjudication
intended to allocate water rights. Since the Bureau is re-
sponsible for administering land and water held in trust for
Indian tribes, 25 U. S. C. § 1a; 25 CFR subch. H, pts. 150–181
(2000), it consulted with the Klamath Tribe, and the two ex-
changed written memorandums on the appropriate scope of
the claims ultimately submitted by the United States for the
benefit of the Klamath Tribe. The Bureau does not, how-

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6 DEPARTMENT OF INTERIOR v. KLAMATH
WATER USERS PROTECTIVE ASSN.
Opinion of the Court
ever, act as counsel for the Tribe, which has its own lawyers
and has independently submitted claims on its own behalf.1
Respondent, the Klamath Water Users Protective Associa-
tion (Association), is a nonprofit association of water users in
the Klamath River Basin, most of whom receive water from
the Klamath Project, and whose interests are adverse to the
tribal interests owing to scarcity of water. The Association
filed a series of requests with the Bureau under the Freedom
of Information Act (FOIA), 5 U. S. C. § 552, seeking access to
communications between the Bureau and the Basin Tribes
during the relevant time period. The Bureau turned over
several documents but withheld others as exempt under the
attorney work-product and deliberative process privileges.
These privileges are said to be incorporated in FOIA Ex-
emption 5, which exempts from disclosure “inter-agency or
intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation
with the agency.” § 552(b)(5). The Association then sued
the Bureau under FOIA to compel release of the documents.
By the time of the District Court ruling, seven documents
remained in dispute, three of them addressing the Plan,
three concerned with the Oregon adjudication, and the sev-
enth relevant to both proceedings. See 189 F. 3d 1034, 1036
(CA9 1999), App. to Pet. for Cert. 41a–49a. Six of the docu-
ments were prepared by the Klamath Tribe or its repre-
sentative and were submitted at the Government’s behest to
the Bureau or to the Department’s Regional Solicitor; a Bu-
reau official prepared the seventh document and gave it to
lawyers for the Klamath and Yurok Tribes. See ibid.
1 The Government is “not technically acting as [the Tribes’] attorney.
That is, the Tribes have their own attorneys, but the United States acts
as trustee.” Tr. of Oral Arg. 5. “The United States has also filed claims
on behalf of the Project and on behalf of other Federal interests” in the
Oregon adjudication. Id., at 6. The Hoopa Valley, Karuk, and Yurok
Tribes are not parties to the adjudication. Brief for Respondent 7.

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Opinion of the Court
The District Court granted the Government’s motion for
summary judgment. It held that each document qualified
as an inter-agency or intra-agency communication for pur-
poses of Exemption 5, and that each was covered by the de-
liberative process privilege or the attorney work-product
privilege, as having played a role in the Bureau’s delibera-
tions about the Plan or the Oregon adjudication. See 189
F. 3d, at 1036, App. to Pet. for Cert. 31a–32a, 56a–65a.
The Court of Appeals for the Ninth Circuit reversed. 189
F. 3d 1034 (1999). It recognized that some Circuits had
adopted a “functional” approach to Exemption 5, under
which a document generated outside the Government might
still qualify as an “intra-agency” communication. See id., at
1037–1038. The court saw no reason to go into that, how-
ever, for it ruled out any application of Exemption 5 on the
ground that “the Tribes with whom the Department has a
consulting relationship have a direct interest in the subject
matter of the consultations.” Id., at 1038. The court said
that “[t]o hold otherwise would extend Exemption 5 to shield
what amount to ex parte communications in contested pro-
ceedings between the Tribes and the Department.” Ibid.
Judge Hawkins dissented, for he saw the documents as
springing “from a relationship that remains consultative
rather than adversarial, a relationship in which the Bureau
and Department were seeking the expertise of the Tribes,
rather than opposing them.” Id., at 1045. He saw the
proper enquiry as going not to a document’s source, but to
the role it plays in agency decisionmaking. See id., at 1039.
We granted certiorari in view of the decision’s significant
impact on the relationship between Indian tribes and the
Government, 530 U. S. 1304 (2000), and now affirm.
II
Upon request, FOIA mandates disclosure of records held
by a federal agency, see 5 U. S. C. § 552, unless the documents
fall within enumerated exemptions, see § 552(b). “[T]hese

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8 DEPARTMENT OF INTERIOR v. KLAMATH
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Opinion of the Court
limited exemptions do not obscure the basic policy that dis-
closure, not secrecy, is the dominant objective of the Act,”
Department of Air Force v. Rose, 425 U. S. 352, 361 (1976);
“[c]onsistent with the Act’s goal of broad disclosure, these
exemptions have been consistently given a narrow compass,”
Department of Justice v. Tax Analysts, 492 U. S. 136, 151
(1989); see also FBI v. Abramson, 456 U. S. 615, 630 (1982)
(“FOIA exemptions are to be narrowly construed”).
A
Exemption 5 protects from disclosure “inter-agency or
intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation
with the agency.” 5 U. S. C. § 552(b)(5). To qualify, a docu-
ment must thus satisfy two conditions: its source must be a
Government agency, and it must fall within the ambit of a
privilege against discovery under judicial standards that
would govern litigation against the agency that holds it.
Our prior cases on Exemption 5 have addressed the second
condition, incorporating civil discovery privileges. See, e. g.,
United States v. Weber Aircraft Corp., 465 U. S. 792, 799–800
(1984); NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 148
(1975) (“Exemption 5 withholds from a member of the public
documents which a private party could not discover in litiga-
tion with the agency”). So far as they might matter here,
those privileges include the privilege for attorney work-
product and what is sometimes called the “deliberative proc-
ess” privilege. Work product protects “mental processes of
the attorney,” United States v. Nobles, 422 U. S. 225, 238
(1975), while deliberative process covers “documents reflect-
ing advisory opinions, recommendations and deliberations
comprising part of a process by which governmental deci-
sions and policies are formulated,” Sears, Roebuck & Co., 421
U. S., at 150 (internal quotation marks omitted). The delib-
erative process privilege rests on the obvious realization
that officials will not communicate candidly among them-

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Opinion of the Court
selves if each remark is a potential item of discovery and
front page news, and its object is to enhance “the quality of
agency decisions,” id., at 151, by protecting open and frank
discussion among those who make them within the Govern-
ment, see EPA v. Mink, 410 U. S. 73, 86–87 (1973); see also
Weber Aircraft Corp., supra, at 802.
The point is not to protect Government secrecy pure and
simple, however, and the first condition of Exemption 5 is no
less important than the second; the communication must be
“inter-agency or intra-agency.” 5 U. S. C. § 552(b)(5). Stat-
utory definitions underscore the apparent plainness of this
text. With exceptions not relevant here, “agency” means
“each authority of the Government of the United States,”
§ 551(1), and “includes any executive department, military
department, Government corporation, Government con-
trolled corporation, or other establishment in the executive
branch of the Government . . . , or any independent regula-
tory agency,” § 552(f).
Although neither the terms of the exemption nor the stat-
utory definitions say anything about communications with
outsiders, some Courts of Appeals have held that in some
circumstances a document prepared outside the Government
may nevertheless qualify as an “intra-agency” memorandum
under Exemption 5. See, e. g., Hoover v. Dept. of Interior,
611 F. 2d 1132, 1137–1138 (CA5 1980); Lead Industries Assn.
v. OSHA, 610 F. 2d 70, 83 (CA2 1979); Soucie v. David, 448
F. 2d 1067 (CADC 1971). In Department of Justice v. Ju-
lian, 486 U. S. 1 (1988), Justice Scalia, joined by Justices
O’Connor and White, explained that “the most natural
meaning of the phrase ‘intra-agency memorandum’ is a mem-
orandum that is addressed both to and from employees of a
single agency,” id., at 18, n. 1 (dissenting opinion). But his
opinion also acknowledged the more expansive reading by
some Courts of Appeals:
“It is textually possible and . . . in accord with the pur-
pose of the provision, to regard as an intra-agency mem-

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10 DEPARTMENT OF INTERIOR v. KLAMATH
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Opinion of the Court
orandum 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 capac-
ity as employee or consultant to the agency, or as em-
ployee or officer of another governmental unit (not an
agency) that is authorized or required to provide advice
to the agency.” Ibid.2
Typically, courts taking the latter view have held that the
exemption extends to communications between Government
agencies and outside consultants hired by them. See, e. g.,
Hoover, supra, at 1138 (“In determining value, the govern-
ment may deem it necessary to seek the objective opinion of
outside experts rather than rely solely on the opinions of
government appraisers”); Lead Industries Assn., supra, at
83 (applying Exemption 5 to cover draft reports “prepared
by outside consultants who had testified on behalf of the
agency rather than agency staff ”); see also Government
Land Bank v. GSA, 671 F. 2d 663, 665 (CA5 1982) (“Both
parties agree that a property appraisal, performed under
contract by an independent professional, is an ‘intra-agency’
document for purposes of the exemption”). In such cases,
the records submitted by outside consultants played essen-
tially the same part in an agency’s process of deliberation as
documents prepared by agency personnel might have done.
To be sure, the consultants in these cases were independent
contractors and were not assumed to be subject to the de-
gree of control that agency employment could have entailed;
nor do we read the cases as necessarily assuming that an
outside consultant must be devoid of a definite point of view
when the agency contracts for its services. But the fact
2 The majority in Julian did not address the question whether the docu-
ments at issue were “inter-agency or intra-agency” records within the
meaning of Exemption 5, because it concluded that the documents would
be routinely discoverable in civil litigation and therefore would not be
covered by Exemption 5 in any event. 486 U. S., at 11–14.

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Opinion of the Court
about the consultant that is constant in the typical cases 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. Its only obligations are to truth and its sense
of what good judgment calls for, and in those respects the
consultant functions just as an employee would be expected
to do.
B
The Department purports to rely on this consultant corol-
lary to Exemption 5 in arguing for its application to the
Tribe’s communications to the Bureau in its capacity of fidu-
ciary for the benefit of the Indian Tribes. The existence of
a trust obligation is not, of course, in question, see United
States v. Cherokee Nation of Okla., 480 U. S. 700, 707 (1987);
United States v. Mitchell, 463 U. S. 206, 225 (1983); Seminole
Nation v. United States, 316 U. S. 286, 296–297 (1942). The
fiduciary relationship has been described as “one of the pri-
mary cornerstones of Indian law,” F. Cohen, Handbook of
Federal Indian Law 221 (1982), and has been compared to
one existing under a common law trust, with the United
States as trustee, the Indian tribes or individuals as benefi-
ciaries, and the property and natural resources managed by
the United States as the trust corpus. See, e. g., Mitchell,
supra, at 225. Nor is there any doubt about the plausibility
of the Government’s assertion that the candor of tribal com-
munications with the Bureau would be eroded without the
protections of the deliberative process privilege recognized
under Exemption 5. The Department is surely right in say-
ing that confidentiality in communications with tribes is con-
ducive to a proper discharge of its trust obligation.
From the recognition of this interest in frank communica-
tion, which the deliberative process privilege might protect,
the Department would have us infer a sufficient justification
for applying Exemption 5 to communications with the
Tribes, in the same fashion that Courts of Appeals have
found sufficient reason to favor a consultant’s advice that

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12 DEPARTMENT OF INTERIOR v. KLAMATH
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Opinion of the Court
way. But the Department’s argument skips a necessary
step, for it ignores the first condition of Exemption 5, that
the communication be “intra-agency or inter-agency.” The
Department seems to be saying that “intra-agency” is a
purely conclusory term, just a label to be placed on any doc-
ument the Government would find it valuable to keep
confidential.
There is, however, no textual justification for draining the
first condition of independent vitality, and once the intra-
agency condition is applied,3 it rules out any application of
Exemption 5 to tribal communications on analogy to consult-
ants’ reports (assuming, which we do not decide, that these
reports may qualify as intra-agency under Exemption 5).
As mentioned already, consultants whose communications
have typically been held exempt have not been communi-
cating with the Government in their own interest or on
behalf of any person or group whose interests might be af-
fected by the Government action addressed by the consult-
ant. In that regard, consultants may be enough like the agen-
cy’s own personnel to justify calling their communications
“intra-agency.” The Tribes, on the contrary, necessarily
communicate with the Bureau with their own, albeit entirely
legitimate, interests in mind. While this fact alone distin-
guishes tribal communications from the consultants’ exam-
ples recognized by several Courts of Appeals, the distinction
is even sharper, in that the Tribes are self-advocates at the
expense of others seeking benefits inadequate to satisfy
everyone.4
3 Because we conclude that the documents do not meet this threshold
condition, we need not reach step two of the Exemption 5 analysis and
enquire whether the communications would normally be discoverable in
civil litigation. See United States v. Weber Aircraft Corp., 465 U. S. 792,
799 (1984).
4 Courts of Appeals have recognized at least two instances of intra-
agency consultants that arguably extend beyond what we have character-
ized as the typical examples. In Public Citizen, Inc. v. Department of
Justice, 111 F. 3d 168 (CADC 1997), former Presidents were so treated in

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Opinion of the Court
As to those documents bearing on the Plan, the Tribes are
obviously in competition with nontribal claimants, including
those irrigators represented by the respondent. App. 66–
71. The record shows that documents submitted by the
Tribes included, among others, “a position paper that dis-
cusses water law legal theories” and “addresses issues re-
lated to water rights of the tribes,” App. to Pet. for Cert.
42a–43a, a memorandum “contain[ing] views on policy the
BIA could provide to other governmental agencies,” “views
concerning trust resources,” id., at 44a, and a letter “convey-
ing the views of the Klamath Tribes concerning issues in-
volved in the water rights adjudication,” id., at 47a. While
these documents may not take the formally argumentative
form of a brief, their function is quite apparently to support
the tribal claims. The Tribes are thus urging a position nec-
essarily adverse to the other claimants, the water being inad-
equate to satisfy the combined demand. As the Court of
Appeals said, “[t]he Tribes’ demands, if satisfied, would lead
to reduced water allocations to members of the Association
and have been protested by Association members who fear
water shortages and economic injury in dry years.” 189
F. 3d, at 1035.
The Department insists that the Klamath Tribe’s
consultant-like character is clearer in the circumstances of
the Oregon adjudication, since the Department merely repre-
sents the interests of the Tribe before a state court that will
their communications with the National Archives and Records Adminis-
tration, even though the Presidents had their own, independent interests,
id., at 171. And in Ryan v. Department of Justice, 617 F. 2d 781 (CADC
1980), Senators’ responses to the Attorney General’s questionnaires about
the judicial nomination process were held exempt, even though we would
expect a Senator to have strong personal views on the matter. We need
not decide whether either instance should be recognized as intra-agency,
even if communications with paid consultants are ultimately so treated.
As explained above, the intra-agency condition excludes, at the least, com-
munications to or from an interested party seeking a Government benefit
at the expense of other applicants.

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14 DEPARTMENT OF INTERIOR v. KLAMATH
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Opinion of the Court
make any decision about the respective rights of the contend-
ers. Brief for Petitioners 42–45; Reply Brief for Petitioners
4–6. But it is not that simple. Even if there were no rival
interests at stake in the Oregon litigation, the Klamath Tribe
would be pressing its own view of its own interest in its
communications with the Bureau. Nor could that interest
be ignored as being merged somehow in the fiduciary inter-
est of the Government trustee; the Bureau in its fiduciary
capacity would be obliged to adopt the stance it believed to
be in the beneficiary’s best interest, not necessarily the posi-
tion espoused by the beneficiary itself. Cf. Restatement
(Second) of Trusts § 176, Comment a (1957) (“[I]t is the duty
of the trustee to exercise such care and skill to preserve the
trust property as a man of ordinary prudence would exercise
in dealing with his own property . . .”).
But, again, the dispositive point is that the apparent object
of the Tribe’s communications is a decision by an agency of
the Government to support a claim by the Tribe that is nec-
essarily adverse to the interests of competitors. Since there
is not enough water to satisfy everyone, the Government’s
position on behalf of the Tribe is potentially adverse to other
users, and it might ask for more or less on behalf of the Tribe
depending on how it evaluated the tribal claim compared
with the claims of its rivals. The ultimately adversarial
character of tribal submissions to the Bureau therefore
seems the only fair inference, as confirmed by the Depart-
ment’s acknowledgment that its “obligation to represent the
Klamath Tribe necessarily coexists with the duty to protect
other federal interests, including in particular its interests
with respect to the Klamath Project.” Reply Brief for Peti-
tioners 8; cf. Nevada v. United States, 463 U. S. 110, 142
(1983) (“[W]here Congress has imposed upon the United
States, in addition to its duty to represent Indian tribes, a
duty to obtain water rights for reclamation projects, and has
even authorized the inclusion of reservation lands within a
project, the analogy of a faithless private fiduciary cannot be

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15 Cite as: 532 U. S. 1 (2001)
Opinion of the Court
controlling for purposes of evaluating the authority of the
United States to represent different interests”). The posi-
tion of the Tribe as beneficiary is thus a far cry from the
position of the paid consultant.
Quite apart from its attempt to draw a direct analogy be-
tween tribes and conventional consultants, the Department
argues that compelled release of the documents would itself
impair the Department’s performance of a specific fiduciary
obligation to protect the confidentiality of communications
with tribes.5 Because, the Department argues, traditional
fiduciary standards forbid a trustee to disclose information
acquired as a trustee when it should know that disclosure
would be against the beneficiary’s interests, excluding the
Tribes’ submissions to the Department from Exemption 5
would handicap the Department in doing what the law
requires. Brief for Petitioners 36–37.6 And in much the
same vein, the Department presses the argument that
“FOIA is intended to cast light on existing government prac-
tices; it should not be interpreted and applied so as to compel
federal agencies to perform their assigned substantive func-
tions in other than the normal manner.” Id., at 29.
All of this boils down to requesting that we read an “In-
dian trust” exemption into the statute, a reading that is out
5 The Department points out that the Plan-related documents submitted
by the Tribes were furnished to the Bureau rather than to Reclamation, a
fact which the Department claims reinforces the conclusion that the docu-
ments were provided to the Department in its capacity as trustee. Brief
for Petitioners 47. This fact does not alter our analysis, however, because
we think that even communications made in support of the trust relation-
ship fail to fit comfortably within the statutory text.
6 We note that the Department cites the Restatement for the proposition
that a “ ‘trustee is under a duty to the beneficiary not to disclose to a third
person information which he has acquired as trustee where he should
know that the effect of such disclosure would be detrimental to the inter-
est of the beneficiary.’ ” Brief for Petitioners 36 (quoting Restatement
(Second) of Trusts § 170, Comment s (1957)). It is unnecessary for us to
decide if the Department’s duties with respect to its communications with
Indian tribes fit this pattern.

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16 DEPARTMENT OF INTERIOR v. KLAMATH
WATER USERS PROTECTIVE ASSN.
Opinion of the Court
of the question for reasons already explored. There is sim-
ply no support for the exemption in the statutory text, which
we have elsewhere insisted be read strictly in order to serve
FOIA’s mandate of broad disclosure,7 which was obviously
expected and intended to affect Government operations. In
FOIA, after all, a new conception of Government conduct
was enacted into law, “ ‘a general philosophy of full agency
disclosure.’ ” Department of Justice v. Tax Analysts, 492
U. S., at 142 (quoting S. Rep. No. 813, 89th Cong., 1st Sess.,
3 (1965)). “Congress believed that this philosophy, put into
practice, would help ‘ensure an informed citizenry, vital to
the functioning of a democratic society.’ ” 492 U. S., at 142
(quoting NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214,
242 (1978)). Congress had to realize that not every secret
under the old law would be secret under the new.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
7 The Department does not attempt to argue that Congress specifically
envisioned that Exemption 5 would cover communications pursuant to the
Indian trust responsibility, or any other trust responsibility. Although as
a general rule we are hesitant to construe statutes in light of legislative
inaction, see Bob Jones Univ. v. United States, 461 U. S. 574, 600 (1983),
we note that Congress has twice considered specific proposals to protect
Indian trust information, see Indian Amendment to Freedom of Informa-
tion Act: Hearings on S. 2652 before the Subcommittee on Indian Affairs
of the Senate Committee on Interior and Insular Affairs, 94th Cong., 2d
Sess. (1976); Indian Trust Information Protection Act of 1978, S. 2773, 95th
Cong., 2d Sess. (1978). We do so because these proposals confirm the
commonsense reading that we give Exemption 5 today, as well as to em-
phasize that nobody in the Federal Government should be surprised by
this reading.