## Facts

- The Bureau of Reclamation administered the Klamath Irrigation Project, which allocated scarce water resources in the Klamath River Basin for competing uses in Oregon and California.
- Interior developed a Klamath Project Operation Plan and sought consultation with several Basin Tribes regarding impacts on tribal trust resources.
- Around the same period, the Bureau of Indian Affairs pursued water-rights claims on behalf of the Klamath Tribe in a state-court adjudication and exchanged written memoranda with the Tribe regarding the scope of those claims.
- Klamath Water Users Protective Association, representing irrigators receiving project water and generally adverse to tribal claims due to scarcity, submitted FOIA requests seeking communications between Interior (including BIA) and the Tribes.
- The Government produced some records but withheld others under FOIA Exemption 5, relying on deliberative-process and attorney work-product theories.
- The district court granted summary judgment for the Government; the Ninth Circuit reversed, concluding Exemption 5 did not apply because the Tribes had a direct interest in the consultations and were not functioning as neutral consultants.

## Issues

1. Whether communications between Interior and the Basin Tribes qualified as “inter-agency or intra-agency memorandums or letters” under FOIA Exemption 5 when the Tribes had a direct stake in contested water-allocation and water-rights matters.
2. Whether the “consultant corollary” could treat the Tribes’ advocacy communications as “intra-agency” for Exemption 5 purposes.

## Decision

- The Supreme Court unanimously affirmed the Ninth Circuit.
- Exemption 5 was inapplicable because the withheld documents were not “inter-agency or intra-agency” within the meaning of 5 U.S.C. § 552(b)(5).
- The Court held the Tribes were communicating as self-interested participants seeking governmental action benefiting their claims, not as disinterested consultants aiding agency deliberation.
- Because the threshold “intra-agency” requirement failed, the Court did not decide whether deliberative-process or work-product privileges would otherwise apply.

## Legal Principles

- FOIA Exemption 5 applies only if a record is (1) “inter-agency or intra-agency” and (2) of a type that would be privileged in civil discovery; failure of the first requirement ends the analysis.
- The “consultant corollary” (treating certain outside consultants’ communications as intra-agency) is limited to consultants who do not represent their own interests or those of another client and who function comparably to agency personnel in deliberations.
- Communications from an outside party with its own direct stake in an agency decision—especially in an adversarial, allocative setting with competing claimants—are not “intra-agency” for Exemption 5 purposes.
- Exemption 5 cannot be expanded to shield one-sided communications in contested proceedings where the outside communicator is advocating for governmental support of its claims.

## Conclusion

The Court held that Interior’s communications with the Basin Tribes about contested water allocations and water-rights claims were not “inter-agency or intra-agency” under FOIA Exemption 5 because the Tribes acted as interested advocates rather than neutral consultants, requiring disclosure absent another applicable exemption.


Department of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001)