12
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 document 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 consultants' 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 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. 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' examples 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 characterized 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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