*** Over the Government's objection the district court authorized the market agencies to take the deposition of the Secretary. The Secretary thereupon appeared in person at the trial. He was questioned at length regarding the process by which he reached the conclusions of his order, including the manner and extent of his study of the record and his consultation with subordinates. His testimony shows that he dealt with the enormous record in a manner not unlike the practice of judges in similar situations, and that he held various conferences with the examiner who heard the evidence. Much was made of his disregard of a memorandum from one of his officials who, on reading the proposed order, urged considerations favorable to the market agencies. But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary "has a quality resembling that of a judicial proceeding." Morgan v. United States, 298 U.S. 468, 480. Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that "it was not the function of the court to probe the mental processes of the Secretary." 304 U.S. 1, 18. Just as a judge cannot be subjected to such a scrutiny, compare Fayerweather v. Ritch, 195 U.S. 276, 306-07, so the integrity of the administrative process must be equally respected. See Chicago, B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 593. It will bear repeating that although the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other. United States v. Morgan, 307 U.S. 183, 191.20

A like conclusion is expressed in North American Airlines v. Civil Aeronautics Board. That decision states, with respect to the Civil Aeronautics Board, that "staff studies, internal departmental memoranda, and recommendations of Board experts to its members ordinarily are not subject to discovery."

In Machin v. Zuckert 22 a member of the crew of an Air Force plane who had been injured in a crash of the plane sought to compel by subpoena the production of the official accident investigation report, for use in an action which he had brought against the manufacturer of the propeller assemblies of the plane. The Secretary of the Air Force offered to identify the witnesses who had testified during the course of the investigation, to permit them to testify concerning all matters relating to the cause of the crash except classified matters, and to authorize them to refresh their memories from the statements made by them in the course of the investigation or from other pertinent Air Force records. The Court sustained in part, and denied in part, the Government's claim that the report itself was privileged, saying:

We agree with the Government that when disclosure of investigative reports obtained in large part through promises of confidentiality would hamper the ef

20 313 U.S. at 421.

21 240 F. 2d 867, 874 (D.C. Cir. 1956), cert. denied 353 U.S. 941 (1957). 22 Supra note 13.

August 6, 1964

ficient operation of an important Government program and perhaps even, as the Secretary here claims, impair the national security by weakening a branch of the military, the reports should be considered privileged. Especially is that so when they are sought in connection with a litigation to which the Government is not a party and when the responsible executive official has been as cooperative as the record in this case reveals the Secretary to have been.

Insofar, therefore, as the subpoena sought to obtain testimony of private parties who participated in the investigation, we agree with the District Court that such information in the hands of the Government is privileged. The privilege extends to any conclusions that might be based in any fashion on such privileged information. Also, a recognized privilege attaches to any portions of the report reflecting Air Force deliberations or recommendations as to policies that should be pursued. ***

The parties, in argument before us, have treated the investigative report as a unit that should either be entirely disclosed or entirely suppressed. From our review of the case, however, it appears to us that certain portions of the report could be revealed without in any way jeopardizing the future success of Air Force accident investigations. We refer to the factual findings of Air Force mechanics who examined the wreckage. Their investigations and reports would not be inhibited by knowledge that their conclusions might be made available for use in future litigation, and their findings may well be of utmost relevance to the litigation now pending between appellant and United Aircraft. * * * Since the reasons given by the Government for holding the investigative report privileged do not, on their face, apply to information of this sort, we consider that, to this limited extent, the subpoena should have been enforced. [Citations omitted.]

In a supplemental opinion 23 the Court clarified the last portion of the foregoing comments by stating that the phrase "factual findings of the mechanics" was intended to mean "anything in their reports that did not fall within any of the areas of privilege recognized in the opinion." It went on to observe:

If the mechanics expressed any "opinions" or "conclusions" as to possible defects in the propellers or propeller governors that might have been due to the negligence of United Aircraft, we do not consider that such expressions would come within the privileges enunciated in our opinion. Where the line is properly drawn between privileged and unprivileged statements appearing in the mechanics reports is impossible to ascertain without viewing the reports themselves in their entirety.

The decisions from which we have quoted set out guidelines that are applicable to the instant motion. The Department Counsel's letter of May 12, 1964, as we read it, is an offer to produce all factual information relating to the Southside Canal, even though contained in documents of the types which the Department Counsel objected to producing in his letter of April 23, 1964. The Board considers that

2316 F. 2d at 340.

the offer to produce, so far as it goes, is consistent with the applicable precedents.

Whether the guidelines set out above would require or justify the inclusion of additional material in the offer to produce is a question that ought to be determined in the first instance by the custodians of the records relating to the Southside Canal, in collaboration with the Department Counsel. If appellant should be dissatisfied with any determination of theirs, whether past or future, an appropriate means for obtaining a remedy would be the submission by appellant of a properly justified request that the Board decide the question.

The information that has been submitted by the parties up to now is insufficient to enable the Board to make determinations with respect to the production of specific documents or classes thereof. As the cited authorities show, determinations upon such matters call for the evaluation of a number of factors. Among them are (1) the relevancy of the documents to the subject matter involved in the pending appeal; (2) the necessity of the documents for the proving of the appellant's case; (3) the seriousness of the danger to the public interests which disclosure of the documents would involve; (4) the presence in the documents of factual data, on the one hand, or of policy opinions, on the other; (5) the existence of confidential relationships which disclosure of the documents might unduly impair; and (6) the normal desirability of full disclosure of all facts in the possession of either party to the appeal. Since the Board lacks any reasonably specific information as to the content and significance of the documents that have been excluded from the offer to produce, it is obviously in no position to decide now whether that offer falls short of meeting the applicable guidelines.

In the circumstances, we believe that a fair and expeditious procedure would be for the Department Counsel to make available, and for counsel for appellant to inspect, those documents that fall within the scope of the offer to produce, together with any additional documents that are determined by their respective custodians to be documents which properly might be disclosed under the guidelines set out in this decision. If, following such inspection, counsel for appellant desires to have other documents produced, these contested documents should be identified and segregated in a manner that will reasonably apprise counsel for appellant of their general nature, and of the reasons why their disclosure is deemed "prejudicial to the interests of the Government," but without disclosing their contents or any other confidential information. Immediately prior to the hearing upon the appeal, a conference will be held pursuant to 43 CFR 4.9, at which

MIGRATORY BIRDS AT GRAYS LAKE, IDAHO
August 10, 1964

counsel for appellant may present a motion for production of the contested documents, at which the Department Counsel will make such documents available for examination by the hearing official, and at which the latter will determine, subject to review by the Board, whether any of such documents should be disclosed to counsel for appellant for purposes of discovery or for use as evidence.

The motion to produce, therefore, is denied without prejudice. Further proceedings for the production of Government records in connection with the instant appeal shall conform, as near as may be, to the procedure outlined in the next to the last paragraph of this opinion. HERBERT J. SLAUGHTER, Deputy Chairman.

I CONCUR:

THOMAS M. DURSTON, Member.

Paul H. Gantt, Chairman, disqualified himself pursuant to 43 CFR 4.2(a).

PROPOSED ESTABLISHMENT OF A REFUGE FOR MIGRATORY BIRDS AT GRAYS LAKE, IDAHO

Migratory Bird Conservation Act: Generally

Section 6 of the Migratory Bird Conservation Act requires approval of title by the Attorney General only when the refuge land is being purchased or rented for a monetary consideration.

M-36664 (Supp.)

To:

August 10, 1964

ASSISTANT SECRETARY FOR FISH AND WILDLIFE

Subject: SUPPLEMENT TO SOLICITOR'S OPINION M-36664 OF DE

CEMBER 19, 1963

You were advised by Solicitor's Opinion M-36664 of December 19, 1963, that the Palisades Act of September 30, 1950, 64 Stat. 1083 (1950), was not intended by Congress to prevent the establishment of a wildlife refuge at Gray's Lake, Idaho, by the Secretary of the Interior under the general authority of the Migratory Bird Conservation Act, 45 Stat. 1222 (1929), as amended, 16 U.S.C. 715 et seq. (1958). Accordingly, we stated that a refuge could be established at Gray's Lake pursuant to the provisions of the Migratory Bird Conservation Act supra. However, we indicated further that since it was our understanding that a lease arrangement was to be used for the

establishment of the refuge, and that the lease called for the passing of a monetary consideration, title to the land covered by the lease would have to be approved by the Attorney General.

You have now requested that we consider additional facts with respect to the proposed establishment of a refuge at Gray's Lake. In particular, we note that a form of "use agreement" is under consideration in the place of a lease. The use agreement will be between the owners of land adjacent to Gray's Lake and the Government, and will provide for the ultilization by the Bureau of Sport Fisheries and Wildlife of approximately 13,000 acres of land within the meander line of the lake for the purpose of establishing a refuge. Although title to this land has been in dispute for many years, the landowners at Gray's Lake, who claim title to this land, have indicated that they are willing to enter into a use agreement covering a specified area for a period of 99 years. This agreement provides to the Government all of the advantages of a lease and preserves to the landowners and the Government their respective long-standing claims to the lands, but does not require the passing of a monetary consideration.

The contemplated use agreement recites the fact that there has been no judicial determination of the extent of the rights of the parties in the land necessary to establish the refuge. It further provides that the owners of land adjacent to the proposed refuge area and the Government will cooperate to promote the utilization of the controverted lands for grazing, for other beneficial uses, and as a wildlife refuge, without either party waiving any of its respective rights to the land in controversy. Under the new agreement the Department of the Interior would be required to pay no money for clarification of its right to the use of the 13,000 acres for 99 years. The Department would agree only that the landowners could continue to utilize certain areas within the Gray's Lake meander line that do not lie within the proposed refuge boundaries.

The landowners for the term of the agreement would specifically assent to the utilization of the proposed refuge area by the Government for construction, operation, and maintenance of a wildlife refuge for migratory birds and other wildlife. This utilization would include the exclusive right to maintain a body of water and to manage that body of water by dams, dikes, fills, ditches, water-control structures, roads, fences, and other construction activities. Execution of the agreement and creation of the refuge would be under the general authority of the Secretary of the Interior under the Migratory Bird Conservation Act, supra, and the statute authorizing cooperative agreements involving the improvement, management, use and pro