NATIONAL WILDLIFE FEDERATION, PLAINTIFF-APPELLANT,

v.

UNITED STATES FOREST SERVICE, DEFENDANT-APPELLEE

WALLACE, Circuit Judge:

The National Wildlife Federation (National Wildlife) appeals from the district court’s entry of summary judgment in favor of the United States Forest Service (Forest Service) on National Wildlife’s request for disclosure of documents pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

National Wildlife sought copies of certain internal documents from the Forest Service, pursuant to the FOIA: (1) working drafts of the Wallowa-Whitman National Forest Plan (Forest Plan), (2) working drafts of an environmental impact statement (draft EISs) relating to the Forest Plan, and (3) “previews” of the drafts, which aré comments, criticisms, and recommendations made by the Land Management Planning Office in Washington, D.C. (Washington Office). Asserting that all of these documents were “predeeisional,” the Forest Service refused to release any of them under exemption (b)(5) of FOIA, 5 U.S.C. § 552(b)(5) (exemption 5). National Wildlife pursued its requests through available administrative channels, but was unable to procure any of the withheld documents.

National Wildlife then filed a complaint in United States District Court. Thereafter, the Forest Service voluntarily released portions of these documents. Upon cross-motions for summary judgment, the case was presented to a magistrate. Pursuant to a stipulation by both parties, the magistrate, who had decided the identical issue in a different case then pending before this court, entered an order denying National Wildlife’s request for the documents. This order was then appealed to this court, at which time it was consolidated with the pending case, Cascade Holistic Economic Consultants v. United States Forest Service. Nos. 84-4095 and 84-4292. In an unpublished disposition, we reversed and remanded both cases to the district court with orders to make specific findings on whether any portions of these doc uments could be released consistent with the exemptions of the FOIA. 767 F. 2d 931 and 767 F. 2d 933.

On remand, the magistrate reviewed the documents and issued findings and recommendations exempting some portions from disclosure but ordering release of others. Following objections by National Wildlife, the district court conducted a review of the documents and ordered release of some additional factual material. In addition, the district court ordered the Forest Service to review the remaining withheld portions and release other factual material that could be segregated from deliberative material. The Forest Service did so, whereupon the district court conducted another review of the documents, this time concluding there were no other factual materials that were reasonably segregable from deliberative materials. National Wildlife timely appealed.

Because the disputed Forest Service documents had not been properly sealed and certified for appeal, we lacked an adequate record on which to base a decision. Therefore, we vacated submission and remanded to the district court to identify specifically the documents reviewed in camera and the portions that were not released, and to seal and certify the documents for our review. After compliance by the district court, we resubmitted this appeal for decision.

II

In reviewing a district court’s judgment under the FOIA, we “must determine whether the district judge had an adequate factual basis for his or her decision” and, if so, we “must determine whether the decision below was clearly erroneous.” Church of Scientology v. United States Department of the Army, 611 F. 2d 738, 742 (9th Cir.1979) (Scientology).

Because the district judge properly inspected the documents involved in this case in camera, the parties do not, and reasonably could not, dispute that the first prong of the test is satisfied. See id. at 743 (concluding that where a trial court properly reviewed contested documents in camera, an adequate factual basis for the decision exists). Hence, our inquiry in this case is limited to reviewing the district court’s judgment for clear error. See id. Under this standard, we will reverse only if we are left with a definite and firm conviction that the district court has erred. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Johnson v. United States Postal Service, 756 F. 2d 1461, 1464 (9th Cir.1985).

A.

The FOIA mandates that agencies make available for public inspection a broad range of information, including the agency’s organization, general methodology, rules of procedure, substantive rules, final opinions, and statements of policy and interpretation that have been adopted by the agency. 5 U.S.C. § 552(a). The FOIA, however, specifically exempts nine categories of documents from its otherwise broad disclosure requirement. 5 U.S.C. § 552(b). Unless documents fall within one of the nine specific exemptions to the disclosure requirement of the FOIA, they are presumed to be available for public inspection. See 5 U.S.C. § 552(c) (“This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.”) (emphasis added). Moreover, “[t]he burden of proof is on the agency to show that the documents are exempt from its duty to disclose.” Willamette Industries v. United States, 689 F. 2d 865, 868 (9th Cir.1982).

As the basis for its decision to withhold the disputed documents, the Forest Service relies on exemption 5, which exempts “inter-agency or intra-agency memorandums [sic] 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). Pursuant to this exemption, the Forest Service invokes the “deliberative process” privilege, which shields from public disclosure confidential inter-agency memoranda on matters of law or policy. See Wolfe v. Department of Health and Human Services, 839 F. 2d 768, 773 (D.C.Cir.1988) (en banc) (Wolfe). The decisive issue in this case is thus whether the remaining withheld portions of the draft Forest Plans, draft EISs, and “previews” can be considered part of the Forest Service’s “deliberative process,” thereby triggering exemption 5.

B.

To qualify for exemption 5 under the “deliberative process” privilege, a document must be both (1) “predecisional” or “antecedent to the adoption of agency policy” and (2) “deliberative,” meaning “it must actually be related to the process by which policies are formulated.” Jordan v. United States Department of Justice, 591 F. 2d 753, 774 (D.C.Cir.1978) (Jordan). These twin requirements recognize that the underlying purpose of this privilege is to “protect[] the consultative functions of government by maintaining the confidentiality of advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Id. at 772.

By maintaining the confidentiality of the give-and-take that occurs among agency members in the formulation of policy, the deliberative process privilege under exemption 5 encourages frank and open discussions of ideas, and, hence, improves the decisionmaking process. See United States v. Weber Aircraft Corp., 465 U.S. 792, 802-03, 104 S.Ct. 1488, 1494, 79 L.Ed. 2d 814 (1984). “[I]t would be impossible to have any frank discussions of legal or policy matters in writing if all such writings were to be subjected to public scrutiny.” Environmental Protection Agency v. Mink, 410 U.S. 73, 87, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1972) (Mink) (citing S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)). As we stated in Julian v. United States Department of Justice, 806 F. 2d 1411 (9th Cir.1986), aff'd, — U.S. -, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988), “Exemption 5 was created to prevent the disruption of a free flow of ideas, opinions, advice and frank discussions within agencies concerning their policies and programs. In furtherance of this objective the courts have allowed the government to withhold memo-randa containing advice, opinions, recommendations and subjective analysis.” Id. at 1419 (citation omitted). Given the underlying purpose of this privilege, it is no surprise that “[fjactual material that does not reveal the deliberative process is not protected by this exemption.” Paisley v. CIA, 712 F. 2d 686, 698 (D.C.Cir.1983).

C.

National Wildlife contends, however, that “to qualify under exemption 5, the documents must not only be predecisional and deliberative, but [must] also contain non-binding and advisory recommendations regarding law or policy: opinions or recommendations regarding facts or consequences of facts [are] not ... exempt.” The magistrate, whose interpretation of the law was adopted by the district court, declined to impose this third requirement on exemption 5. Because the question of what requirements apply to a disclosure exemption under the FOIA is a question of law, we review this issue de novo. See, e.g., Scientology, 611 F. 2d at 743-44.

The magistrate rejected National Wildlife’s suggested additional test for two reasons. First, he observed that National Wildlife had cited no cases imposing this third requirement on exemption 5. Second, he stated that, in effect, National Wildlife’s “argument would require disclosure of the deliberative processes regarding facts, which Ryan [v. Department of Justice, 617 F. 2d 781 (D.C.Cir.1980) (Ryan),] does not allow.” Although National Wildlife disputes the first reason, we believe the magistrate was correct. The merits, however, are properly focused in the magistrate’s second reason.

National Wildlife challenges the magistrate’s reading of Ryan. It argues that Ryan allows factual matters to be withheld only when their disclosure would reveal the substance of predecisional policy discussions. Under National Wildlife’s formulation of the requirements for the “deliberative process” privilege, documents can fall into one of three possible categories: factu al; deliberative, but not containing “nonbinding recommendations regarding law or policy”; and deliberative and containing such non-binding recommendations on law or policy. Only documents in the third category would qualify for the privilege. National Wildlife, however, points to no case explicitly articulating such a tripartite categorization of agency documents. The Supreme Court has recognized a distinction only between “materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other.” See Mink, 410 U.S. at 89, 93 S.Ct. at 836 (emphasis added). Whereas “materials reflecting deliberative or policy-making processes” fall within exemption 5, “memoranda consisting only of compiled factual material or purely factual material contained in deliberative memo-randa and severable from its context would generally be available” for inspection by the public. Id. at 87-89, 93 S.Ct. at 836 (emphasis added); see also Local 3, IBEW, AFL-CIO v. NLRB, 845 F. 2d 1177, 1180 (2d Cir.1988) (“Purely factual material not reflecting the agency’s deliberative process is not protected.”). The Court, moreover, pointed out that Congress had rejected an early version of exemption 5 that would have required disclosure of “[a]ll factual material on Government records,” Mink, 410 U.S. at 90, 93 S.Ct. at 837, quoting S. Rep. No. 1219, 88th Cong., 2d Sess. 7 (1964) (emphasis in original). Hence, contrary to National Wildlife’s suggestion, “opinions or recommendations regarding facts or consequences of facts” are not automatically ineligible for exemption from disclosure under exemption 5.

In addition, National Wildlife has cited no case and we have found no case that supports an explicit requirement that a document contain advisory recommendations must relate to deliberations of “law and policy.” We have found a statement that suggests that a document must relate to “law or policy” to be “deliberative” in the first place. In Vaughn v. Rosen, 523 F. 2d 1136, 1144 (D.C.Cir.1975), the District of Columbia Circuit suggested in dictum that to satisfy the exemption 5 “deliberative” requirement, a

document must be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Put another way ... [it] must ... be a part of the agency give-and-take — of the deliberative process — by which the decision itself is made.

We do not, however, read such a statement as suggesting that a document, or any portion thereof, must itself contain recommendations on law or policy to qualify as “deliberative.” Therefore, we reject National Wildlife’s suggested tripartite analysis; we will not distinguish between deliberative documents which do and do not contain “non-binding recommendations regarding law or policy.”

D.

When a court must decide whether exemption 5 applies in a complicated case, we believe a better analytical tool than merely determining whether the material itself was essentially deliberative or factual should be used: we should focus on whether the document in question is a part of the deliberative process. The District of Columbia Circuit has emphasized that exemption 5 “was intended to protect not simply deliberative material, but also the deliberative process of agencies.” Montrose Chemical Corp. of California v. Train, 491 F. 2d 63, 71 (D.C. Cir.1974) (Montrose Chemical) (emphasis added). Hence, even if the content of a document is factual, if disclosure of the document would expose “the decision-making process itself” to public scrutiny by revealing the agency’s “evaluation and analysis of the multitudinous facts,” the document would nonetheless be exempt from disclosure. Id. at 68. In other words, the document is considered to be part of the “deliberative process” as long as it is “actually ... related to the process by which policies are formulated.” Jordan, 591 F. 2d at 774 (emphasis added). Accordingly, the deliberative process privilege has been held to cover all “recommendations, draft documents, proposals, suggestions and other subjective documents which reflect the personal opin ions of the writer rather than the policy of the agency,” as well as documents which would “inaccurately reflect or prematurely disclose the views of the agency.” Coastal States Gas Corp. v. Department of Energy, 617 F. 2d 854, 866 (D.C. Cir.1980).

Thus, the District of Columbia Circuit has repeatedly interpreted exemption 5 to protect documents that would reveal the process by which agency officials make these determinations, whether or not the documents themselves contain facts on non-binding recommendations regarding law and policy. In Russell v. Department of the Air Force, 682 F. 2d 1045, 1048 (D.C. Cir.1982) (Russell), for instance, the court recognized that exemption 5 covers “not only communications which are themselves deliberate in nature, but also all communications which, if revealed, would expose to public view the deliberative process of an agency,”; and, therefore, applies if, “disclosure of even purely factual material would reveal an agency’s decision-making process.” Accord Mead Data Central, Inc. v. United States Department of the Air Force, 566 F. 2d 242, 256 (D.C. Cir.1977). Under such a “process-oriented” inquiry, “a report does not become part of the deliberative process simply because it contains only those facts which the person making the report thinks material.” Playboy Enterprises, Inc. v. Department of Justice, 677 F. 2d 931, 935 (D.C. Cir.1982). Where either the disclosure of the manner of selecting or presenting facts would expose the deliberative process, or where facts are “inextricably intertwined” with “policy-making processes,” the material is exempt. Ryan, 617 F. 2d at 790; Lead Industries Association, Inc. v. OSHA, 610 F. 2d 70, 83 (2d Cir.1979) (Lead Industries); Soucie v. David, 448 F. 2d 1067, 1078 (D.C. Cir.1971).

Our reading of the foregoing cases informs us that the scope of the deliberative process privilege should not turn on whether we label the contents of a document “factual” as opposed to “deliberative.” See Montrose Chemical, 491 F. 2d at 67-68. A legal standard that ties our judgment solely to the type of information allegedly secreted in a document transforms our inquiry into a semantics debate that ignores that the ultimate objective of exemption 5 is to safeguard the deliberative process of agencies, not the paperwork generated in the course of that process. See Dudman Communications Corp. v. Department of the Air Force, 815 F. 2d 1565, 1568 (9th Cir.1987) (Dudman Communications). Documents need not themselves be “deliberative,” in the sense that they make nonbinding recommendations on law or policy, in order to qualify for the deliberative process privilege. “In some circumstances, even material that could be characterized as ‘factual’ would so expose the deliberative process that it must be covered by the [deliberative process] privilege.” Wolfe, 839 F. 2d at 774.

Under this “process-oriented” or “functional” test that we adopt, documents containing nonbinding recommendations on law or policy would continue to remain exempt from disclosure. Factual materials, however, would likewise be exempt from disclosure to the extent that they reveal the mental processes of decision-makers. See Dudman Communications, 815 F. 2d at 1568; Lead Industries, 610 F. 2d at 85-86; Montrose Chemical, 491 F. 2d at 67-68. In other words, whenever the unveiling of factual materials would be tantamount to the “publication of the evaluation and analysis of the multitudinous facts” conducted by the agency, the deliberative process privilege applies. Mont-rose Chemical, 491 F. 2d at 68.

This approach to analyzing claims of exemption under exemption 5, which looks to the underlying purpose of the deliberative process privilege, is consistent with the “flexible, common-sense approach” to exemption 5 that has been approved by the Supreme Court. See Mink, 410 U.S. at 91, 93 S.Ct. at 837. The Court recognized that, in choosing the language of exemption 5,

Congress sensibly discarded a wooden formulation that could have meant disclosure of manifestly private and confidential policy recommendations simply because the document containing them also happened to contain factual data. That decision should not be taken, however, to embrace an equally wooden exemption permitting the withholding of factual material otherwise available on discovery merely because it was placed in a memorandum with matters of law, policy, or opinion. It appears to us that Exemption 5 contemplates that the public’s access to internal memoranda will be governed by the same flexible, common-sense approach that has long governed private parties’ discovery of such documents involved in litigation with Government agencies.

Id.

Categorically excluding “opinions and recommendations regarding facts or consequences of facts” from exemption 5, as National Wildlife urges, is inconsistent with Supreme Court and Court of Appeals precedent. It also ignores the realities of policymaking. Decisions of government agencies are not made in a vacuum. Policies are formulated to address concrete problems. Which of several competing policies to adopt is a question that requires the policymaker to assess facts and their anticipated consequences. Opinions on facts and their consequences of those facts form the grist for the policymaker’s mill. Each opinion as to which of the great constellation of facts are relevant and important and each assessment of the implications of those facts suggests a different course of action by the agency. Before arriving at a final decision, the policymaker may alter his or her opinion regarding which facts are relevant or the likely consequences of these facts, or both. Tentative policies may undergo massive revisions based on a reassessment of these variables, during which the agency may decide that certain initial projections are not reasonable or that the likely consequences of a given course of action have been over-or underestimated. Subjecting a policymaker to public criticism on the basis of such tentative assessments is precisely what the deliberative process privilege is intended to prevent.

Ill

In applying this test to the case presented in this appeal, we will review first the draft Forest Plans and draft EISs. We will then discuss the “previews.”

A.

The two draft Forest Plans and the two draft EISs are predecisional. These documents are merely working drafts subject to revision. Once they are in final form, the Forest Service will make them available to the public. The only question concerning the draft Forest Plans and draft EISs is whether their disclosure would reveal the deliberative processes of the Forest Service.

In reviewing the draft Forest Plans and draft EISs, we bear in mind that they reflect a compromise among numerous competing uses of the Wallowa-Whitman National Forest (Forest). The Forest Plan represents the Forest Service’s judgment as to the appropriate balance to strike among the conflicting demands placed on the Forest’s finite resources. These conflicting demands stem from such varied uses as timber production, livestock grazing, recreation, natural resource conservation, and wildlife preservation, to name but a few. Only by first understanding the ultimate ends to which the Forest Service’s deliberations are directed can we adequately judge whether the disputed portions of the draft Forest Plans and draft EISs reflect this deliberative process.

PREGERSON, Circuit Judge,

concurring:

I concur in the result reached by Judge Wallace. In this case the district court was not clearly erroneous in concluding that the contested documents were properly withheld under exemption (b)(5) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(5) (exemption 5).

The portions of the draft Forest Plans, draft EISs, and “previews” in question were not factual, but rather were deliberative in nature. They represented analyses of and tentative opinions about issues of concern to the Forest Service — aspects of the decision-making process covered by exemption 5. I write separately, however, because the language in the opinion is far broader than necessary or appropriate to decide this case. The majority applies a test developed in a line of District of Columbia Circuit cases that exempts factual materials “from disclosure to the extent that they reveal the mental processes of decision-makers.” Majority opinion at 14112 (citing cases).

Under the majority’s so-called “functional” test, FOIA is swallowed up by exemption 5, a result contrary to the plain purpose of the Act. FOIA is a disclosure statute which “seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands.” Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). For this reason, the Act’s exemptions must be narrowly construed. Indeed, as the Senate Committee Report explains, FOIA’s purpose is “to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language_” S.Rep. No. 813, p. 3, n. 6.

The “functional” test might be read to allow an agency to withhold documents that are purely factual so long as they are “related to the process by which policies are formulated.” Majority opinion at 1118 (quoting Jordan v. United States Department of Justice, 591 F. 2d 753, 774 (D.C. Cir.1978)).

Because nearly everything an agency generates is somehow related to the deliberative process, careless application of the “functional” test would afford government agencies unrestrained discretion in deciding whether to release materials requested under FOIA. Even though this result is not intended by the majority, the opinion could be misconstrued to protect from disclosure virtually any government document that does not constitute a final decision. Such a result is inconsistent with the stated purpose of FOIA: to provide “a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.” Mink, 410 U.S. at 80, 93 S.Ct. at 832 (quoting S.Rep.No. 813, p. 3).

We should all bear in mind that secret government is abhorrent to democratic values. FOIA reflects Congress’ judgment that the people have a right to know how their government actually functions.