DEPARTMENT OF THE AIR FORCE ET AL. v. ROSE ET AL.
No. 74-489
Supreme Court of the United States
Argued October 8, 1975—Decided April 21, 1976
425 U.S. 352
Deputy Solicitor General Friedman argued the cause for petitioners. With him on the briefs were Solicitor General Bork, Assistant Attorney General Lee, Acting Assistant Attorney General Jaffe, Allan Abbot Tuttle, Leonard Schaitman, and Donald Etra.
Barrington D. Parker, Jr., argued the cause for respondents. With him on the brief were Melvin L. Wulf and John H. F. Shattuck.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Respondents, student editors or former student editors of the New York University Law Review researching
“and cooperate with the judge in redacting the records so as to delete personal references and all other identifying information. . . . We think it highly likely that the combined skills of court and Agency, applied to the summaries, will yield edited documents sufficient for the purpose sought and sufficient as well to safeguard affected persons in their legitimate claims of privacy.” Ibid. (Footnotes omitted.)
We granted certiorari, 420 U. S. 923 (1975). We affirm.
I
The District Court made factual findings respecting the administration of the Honor and Ethics Codes at the Academy. See Pet. for Cert. 28A-29A, nn. 5, 6. Under the Honor Code enrolled cadets pledge: “We will not lie, steal, or cheat, nor tolerate among us any-
The Board may return a guilty finding only upon unanimous vote. If the verdict is guilty, under certain circumstances the Board may grant the guilty cadet “discretion,” for which a vote of six of the eight members is required. A verdict of guilty with discretion is equivalent to a not-guilty finding in that the cadet is returned to his cadet squadron in good standing. A verdict of guilty without discretion results in one of three alternative dispositions: the cadet may resign from the Academy, request a hearing before a Board of Officers, or request a trial by court-martial.
At the announcement of the verdict, the Honor Committee Chairman reminds all cadets present at the hearing that all matters discussed at the hearing are confidential and should not be discussed outside the room with anyone other than an honor representative. A case summary consisting of a brief statement, usually only one page, of the significant facts is prepared by the Committee. As we have said, copies of the summaries are posted on 40 squadron bulletin boards throughout the Academy, and distributed among Academy faculty and administration officials. Cadets are instructed not to read the summaries, unless they have a need, beyond mere curiosity, to know their contents, and the reading
Ethics Code violations are breaches of conduct less serious than Honor Code violations, and administration of Ethics Code cases is generally less structured, though similar. In many instances, ethics cases are handled informally by the cadet squadron commander, the squadron ethics representative, and the individual concerned. These cases are not necessarily written up and no complete file is maintained; a case is written up and the summary placed in back of the Honor Code reading files only if it is determined to be of value for the cadet population. Distribution of Ethics Code summaries is substantially the same as that of Honor Code summaries, and their confidentiality, too, is maintained by Academy custom and practice.
II
Our discussion may conveniently begin by again emphasizing the basic thrust of the Freedom of Information Act,
“Without question, the Act is broadly conceived. It 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. Subsection (b) is part of this scheme and represents the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses. As the Senate Committee explained, it was
not ‘an easy task to balance the opposing interests, but it is not an impossible one either.... Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.’ S. Rep. No. 813, p. 3.”
Mindful of the congressional purpose, we then turn to consider whether mandatory disclosure of the case summaries is exempted by either of the exemptions involved here, discussing, first, Exemption 2, and, second, Exemption 6.
III
The phrasing of Exemption 2 is traceable to congressional dissatisfaction with the exemption from disclosure under former § 3 of the Administrative Procedure Act of “any matter relating solely to the internal management of an agency.”
No final action was taken on S. 1666 in the 88th Congress; the Senate passed the bill, but it reached the
But that is not the end of the inquiry. The House and Senate Reports on the bill finally enacted differ upon the scope of the narrowed exemption. The Senate Report stated:
“Exemption No. 2 relates only to the internal personnel rules and practices of an agency. Examples of these may be rules as to personnel’s use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like.” S. Rep. No. 813, p. 8.
The House Report, on the other hand, declared:
“2. Matters related solely to the internal personnel rules and practices of any agency: Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclosure, but this exemption would not cover all ‘matters of internal management’ such as employee relations and working conditions and routine administrative procedures which are withheld under the present law.” H. R. Rep. No. 1497, p. 10.
Almost all courts that have considered the difference between the Reports have concluded that the Senate Report more accurately reflects the congressional pur-
It might appear, nonetheless, that the House Report‘s reference to “[o]perating rules, guidelines, and manuals of procedure” supports a much broader interpretation of the exemption than the Senate Report‘s circumscribed examples. This argument was recently considered and rejected by Judge Wilkey speaking for the Court of Appeals for the District of Columbia Circuit in Vaughn v. Rosen, 173 U. S. App. D. C., at 193-194, 523 F. 2d, at 1142:
“Congress intended that Exemption 2 be interpreted narrowly and specifically. In our view, the House Report carries the potential of exempting a wide swath of information under the category of ‘operating rules, guidelines, and manuals of procedure....’ The House Report states that the exemption ‘would not cover all “matters of internal management” such as employee relations and working conditions and routine administrative procedures...’ and yet it gives precious little guidance as to which matters are covered by the exemption and which are not. Although it is equally terse, the Senate Report indicates that the line sought to be drawn is one between minor or trivial matters and those more substantial matters which might be the subject of legitimate public interest.
“This is a standard, a guide, which an agency and then a court, if need be, can apply with some certainty, consistency and clarity. . . .
“Reinforcing this interpretation is ‘the clear legislative intent [of the FOIA] to assure public access to all governmental records whose disclosure would not significantly harm specific governmental interests.’
[Soucie v. David, 145 U. S. App. D. C. 144, 157, 448 F. 2d 1067, 1080 (1971)]. As a result, we have repeatedly stated that ‘[t]he policy of the Act requires that the disclosure requirements be construed broadly, the exemptions narrowly.’ [Ibid.; Vaughn v. Rosen, 157 U. S. App. D. C. 340, 343, 484 F. 2d 820, 823 (1973).] Thus, faced with a conflict in the legislative history, the recognized principal purpose of the FOIA requires us to choose that interpretation most favoring disclosure.
“The second major consideration favoring reliance upon the Senate Report is the fact that it was the only committee report that was before both houses of Congress. The House unanimously passed the Senate Bill without amendment, therefore no conference committee was necessary to reconcile conflicting provisions. . . .
“... [W]e as a court viewing the legislative history must be wary of relying upon the House Report, or even the statements of House sponsors, where their views differ from those expressed in the Senate. As Professor Davis said: ‘The basic principle is quite elementary: The content of the law must depend upon the intent of both Houses, not of just one.’ [See generally K. Davis, Administrative Law Treatise § 3A.31, p. 175 (1970 Supp.).] By unanimously passing the Senate Bill without amendment, the House denied both the Senate Committee and the entire Senate an opportunity to object (or concur) to the interpretation written into the House Report (or voiced in floor colloquy). This being the case, we choose to rely upon the Senate Report.”
For the reasons stated by Judge Wilkey, and because we think the primary focus of the House Report was on exemption of disclosures that might enable the regulated
The District Court had also concluded in this case that the Senate Report was “the surer indication of congressional intent.” Pet. for Cert. 34A n. 21. The Court of Appeals found it unnecessary to take “a firm stand on the issue,” concluding that “the difference of approach between the House and Senate Reports would not affect the result here.” 495 F. 2d, at 265. The different conclusions of the two courts in applying the Senate Report‘s interpretation centered upon a disagreement as to the materiality of the public significance of the operation of the Honor and Ethics Codes. The District Court based its conclusion on a determination that the Honor and Ethics Codes “[b]y definition are meant to control only those people in the agency.... The operation of the Honor Code cannot possibly affect anyone outside its sphere of voluntary participation which is limited by its function and its publication to the Academy.” Pet. for Cert. 34A. The Court of Appeals on the other hand concluded that under “the Senate construction of Exemption Two, [the] case summaries . . . clearly fall outside its ambit” because “[s]uch summaries have a substantial potential for public interest outside the Government.” 495 F. 2d, at 265.
We agree with the approach and conclusion of the Court of Appeals. The implication for the general public of the Academy‘s administration of discipline is obvious, particularly so in light of the unique role of the military. What we have said of the military in other contexts has equal application here: it “constitutes a specialized community governed by a separate discipline from that of the civilian,” Orloff v. Willoughby, 345 U. S. 83, 94 (1953), in which the internal law of command and obedience invests the military officer with “a particular position of responsibility.” Parker v. Levy,
“[Respondents] have drawn our attention to various
items such as newspaper excerpts, a press conference by an Academy officer and a White House Press Release, which illustrate the extent of general concern with the working of the Cadet Honor Code. As the press conference and the Press Release show, some of the interest has been generated—or at least enhanced—by acts of the Government itself. Of course, even without such official encouragement, there would be interest in the treatment of cadets, whose education is publicly financed and who furnish a good portion of the country‘s future military leadership. Indeed, all sectors of our society, including the cadets themselves, have a stake in the fairness of any system that leads, in many instances, to the forced resignation of some cadets. The very study involved in this case bears additional witness to the degree of professional and academic interest in the Academy‘s student-run system of discipline.... [This factor] differentiate [s] the summaries from matters of daily routine like working hours, which, in the words of Exemption Two, do relate ‘solely to the internal personnel rules and practices of an agency.‘” 495 F. 2d, at 265 (emphasis in Court of Appeals opinion).
In sum, we think that, at least where the situation is not one where disclosure may risk circumvention of agency regulation, Exemption 2 is not applicable to matters subject to such a genuine and significant public interest. The exemption was not designed to authorize withholding of all matters except otherwise secret law bearing directly on the propriety of actions of members of the public. Rather, the general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the public could not reasonably be expected to
IV
Additional questions are involved in the determination whether Exemption 6 exempts the case summaries from mandatory disclosure as “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The first question is whether the clause “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” modifies “personnel and medical files” or only “similar files.” The Agency argues that Exemption 6 distinguishes “personnel” from “similar” files, exempting all “personnel files” but only those “similar files” whose disclosure constitutes “a
The Agency did not argue its suggested distinction between “personnel” and “similar” files to either the District Court or the Court of Appeals, and the opinions of both courts treat Exemption 6 as making no distinction between “personnel” and “similar” files in the application of the “clearly unwarranted invasion of personal privacy” requirement. The District Court held that “[i]t is only the identifying connection to the individual that casts the personnel, medical, and similar files within the protection of [the] sixth exemption.” Pet. for Cert. 30A-31A. The Court of Appeals stated: “[W]e are dealing here with ‘personnel’ or ‘similar files.’ But the key words, of course, are ‘a clearly unwarranted invasion of personal privacy‘....” 495 F. 2d, at 266.
We agree with these views, for we find nothing in the wording of Exemption 6 or its legislative history to support the Agency‘s claim that Congress created a blanket exemption for personnel files. Judicial interpretation has uniformly reflected the view that no reason would exist for nondisclosure in the absence of a showing of a clearly unwarranted invasion of privacy, whether the documents are filed in “personnel” or “similar” files. See, e. g., Wine Hobby USA, Inc. v. IRS, 502 F. 2d 133, 135 (CA3 1974); Rural Housing Alliance v. United States Dept. of Agriculture, 162 U. S. App. D. C. 122, 126, 498 F. 2d 73, 77 (1974); Vaughn v. Rosen, 157 U. S. App. D. C. 340, 484 F. 2d 820 (1973); Getman v. NLRB, 146 U. S. App. D. C. 209, 450 F. 2d 670 (1971).
Both House and Senate Reports can only be read as disclosing a congressional purpose to eschew a blanket exemption for “personnel ... and similar files” and to require a balancing of interests in either case. Thus the House Report states, H. R. Rep. No. 1497, p. 11: “The limitation of a ‘clearly unwarranted invasion of personal privacy’ provides a proper balance between the protection of an individual‘s right of privacy and the preservation of the public‘s right to Government information by excluding those kinds of files the disclosure of which might harm the individual.” Similarly, the Senate Report, S. Rep. No. 813, p. 9, states: “The phrase ‘clearly unwarranted invasion of personal privacy’ enunciates a policy that will involve a balancing of interests between the protection of an individual‘s private affairs from unnecessary public scrutiny, and the preservation of the public‘s right to governmental information.”9 Plainly
Congress did not itself strike the balance as to “personnel files” and confine the courts to striking the balance only as to “similar files.” To the contrary, Congress enunciated a single policy, to be enforced in both cases by the courts, “that will involve a balancing” of the private and public interests.10 This was the conclusion of the Court of Appeals for the District of Columbia Circuit as to medical files, and that conclusion is equally applicable to personnel files:
“Exemption (6) of the Act covers ‘... medical files ... the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.’ Where a purely medical file is withheld under authority of Exemption (6), it will be for the District Court ultimately to determine any dispute as to whether that exemption was properly invoked.” Ackerly v. Ley, 137 U. S. App. D. C. 133, 136-137, n. 3, 420 F. 2d 1336, 1339-1340, n. 3 (1969) (ellipses in original).
See also Wine Hobby USA, Inc. v. IRS, supra, at 135. Congress’ recent action in amending the
“to look beneath the label on a file or record when the withholding of information is challenged. . . .
“. . . [W]here files are involved [courts will] have to examine the records themselves and require disclosure of portions to which the purposes of the exemption under which they are withheld does not apply.” S. Rep. No. 93-854, p. 32 (1974).
“For example, deletion of names and identifying characteristics of individuals would in some cases serve the underlying purpose of exemption 6, which exempts ‘personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.‘” 120 Cong. Rec. 17018 (1974).
In so specifying, Congress confirmed what had perhaps been only less clear earlier. For the Senate and House Reports on the bill enacted in 1966 noted specifically that Health, Education, and Welfare files, Selective Service files, or Veterans’ Administration files, which as the Agency here recognizes13 were clearly included within the congressional conception of “personnel files,”14 were nevertheless intended to be subject to mandatory disclosure in redacted form if privacy could be sufficiently protected. As the House Report states, H. R.
Moreover, even if we were to agree that “personnel files” are wholly exempt from any disclosure under Exemption 6, it is clear that the case summaries sought here lack the attributes of “personnel files” as commonly understood. Two attributes of the case summaries require that they be characterized as “similar files.” First, they relate to the discipline of cadet personnel, and while even Air Force Regulations themselves show that this single factor is insufficient to characterize the summaries as “personnel files,”15 it supports the conclusion that they are “similar.” Second, and most significantly, the disclosure of these summaries implicates similar privacy values; for as said by the Court of
This contention has no merit. First, the argument implies that Congress barred disclosure in any case in which the conclusion could not be guaranteed that disclosure would not trigger recollection of identity in any person whatever. But this ignores Congress’ limitation of the exemption to cases of “clearly unwarranted”16 invasions
In striking the balance whether to order disclosure of all or part of the case summaries, the District Court, in determining whether disclosure will entail a “clearly unwarranted” invasion of personal privacy, may properly discount its probability in light of Academy tradition to keep identities confidential within the Academy.19 Respondents sought only such disclosure as was consistent with this tradition. Their request for access to summaries “with personal references or other identifying information deleted,” respected the confidentiality interests embodied in Exemption 6. As the Court of Appeals recognized, however, what constitutes identifying information regarding a subject cadet must be weighed not only from the viewpoint of the public, but also from the vantage of those who would have been familiar, as fellow cadets or Academy staff, with other aspects of his career at the Academy. Despite the summaries’ distribution within the Academy, many of this group with earlier access to summaries may never have identified a particu-
To be sure, redaction cannot eliminate all risks of identifiability, as any human approximation risks some degree of imperfection, and the consequences of exposure of identity can admittedly be severe. But redaction is a familiar technique in other contexts20 and exemptions to disclosure under the Act were intended to be prac-
Affirmed.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
MR. CHIEF JUSTICE BURGER, dissenting.
If “hard cases make bad law,” unusual cases surely have the potential to make even worse law. Today, on the basis of a highly unusual request for information about a unique governmental process, a military academy honor system, the Court interprets definitively a substantial and very significant part of a major federal statute governing the balance between the public‘s “right to know” and the privacy of the individual citizen.
In my view, the Court makes this case carry too much jurisprudential baggage. Consequently, the basic congressional intent to protect a reasonable balance between the availability of information in the custody of the Government and the particular individual‘s right of privacy is undermined. In addition, district courts are burdened with a task Congress could not have intended for them.
(1) This case does not compel us to decide whether the summaries at issue here are “personnel files” or whether files so categorized are beyond the proviso of Exemption 6 that disclosure constitute “a clearly unwarranted invasion of personal privacy.” Even assuming, arguendo, that the Government must show that the summaries are subject to the foregoing standard, it is quite
The Court correctly notes that Congress, in enacting Exemption 6, intended to strike “a proper balance between the protection of the individual‘s right of privacy and the preservation of the public‘s right to Government information by excluding those kinds of files the disclosure of which might harm the individual.” H. R. Rep. No. 1497, 89th Cong., 2d Sess., 11 (1966). Having acknowledged the necessity of such a balance, however, the Court, in my view, blandly ignores and thereby frustrates the congressional intent by refusing to weigh, realistically, the grave consequences implicit in release of this particular information, in any form, against the relatively inconsequential claim of “need” for the material alleged in the complaint.
The opinions of this Court have long recognized the opprobrium which both the civilian and the military segments of our society attribute to allegations of dishonor among commissioned officers of our Armed Forces. See, e. g., Parker v. Levy, 417 U. S. 733, 744 (1974), quoting Orloff v. Willoughby, 345 U. S. 83, 91 (1953). The stigma which our society imposes on the individual who has accepted such a position of trust1 and abused it is not erasable, in any realistic sense, by the passage of time
Admittedly, the Court requires that, before release, these documents be subject to in camera inspection with power of excising parts. But, as the Court admits, any such attempt to “sanitize” these summaries would still leave the very distinct possibility that the individual would still be identifiable and thereby injured. In light of Congress’ recent manifest concern in the
(2) Moreover, excision would not only be ineffectual in accomplishing the legislative intent of protecting an individual‘s affairs from unnecessary public scrutiny, but it would place an intolerable burden upon a district court which, in my view, Congress never intended to inflict. Although the 1974 amendments to the
If the Court‘s holding is indeed a fair reflection of congressional intent, we are confronted with a “split-personality” legislative reaction, by the conflict between a seeming passion for privacy and a comparable passion for needless invasions of privacy.
Accordingly, I would reverse the judgment of the Court of Appeals.
MR. JUSTICE BLACKMUN, dissenting.
We are here concerned with the
A. The Act‘s second exemption,
I cannot accept the rationale of the Court of Appeals majority that the existence of a “substantial potential for
B. The Act‘s sixth exemption,
If, then, these case summaries are something less than “personnel files,” a proposition I do not accept, they surely are “similar” to personnel files and, when invaded, afford an instance of a “clearly unwarranted invasion of personal privacy.” It is hard to imagine something any more personal. It seems to me that the Court is blinding itself to realities when it concludes, as it does, that Rose‘s demands do not result in invasions of the personal privacy of the cadets concerned. And I do not regard it as any less unwarranted just because there are court-ordered redaction, a most impractical solution, and judicial rationalization that because the case summaries were posted “on 40 squadron bulletin boards throughout the Academy,” ante, at 355, and copies distributed to faculty and administration officials, the invasion is not an invasion at all. The “publication” is restricted to the Academy grounds and to the private, not public, portions of those facilities. It is disseminated to the corps alone and to faculty and administration, and is a part of the Academy‘s general pedagogical and disciplinary purpose and program. To be sure, 40 may appear to some to be a large number, but the Academy‘s “family” and the area confinement are what are important. And the Court‘s reasoning must apply, awkwardly it seems to me, to 20 or 10 or five or two posting places, or, indeed, to only one.
I should add that I see little assistance for the Court in the legislative history. As is so often the case, that
Finally, I note the Court‘s candid recognition of the personal risks involved. Ante, at 380-381. Today‘s decision, of course, now makes those risks a reality for the cadet, “particularly one who has remained in the military,” and the risks are imposed upon the individual in return for a most questionable benefit to the public and personal benefit to respondent Rose. So often the pendulum swings too far.
I fear that the Court today strikes a severe blow to the Honor Codes, to the system under which they operate, and to the former cadets concerned. It is sad to see these old institutions mortally wounded and passing away and individuals placed in jeopardy and embarrassment for lesser incidents long past.
I would reverse the judgment of the Court of Appeals.
MR. JUSTICE REHNQUIST, dissenting.
Although this case requires our consideration of a claim of a right to “privacy,” it arises in quite a different context from some of our other recent decisions such as Paul v. Davis, 424 U. S. 693 (1976). In that case custodians of public records chose to disseminate them, and one of the subjects of the record claimed that the Fourteenth Amendment to the United States Constitution prohibited the custodian from doing so. Here the custodian of the records, petitioner Department of the Air Force, has chosen not to disseminate the records, and its decision to that effect is being challenged by a citizen under the
Notes
“(a) Each agency shall make available to the public information as follows:
“(3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.
“(4) (Α)....
“(B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.
“(b) This section does not apply to matters that are—
“(2) related solely to the internal personnel rules and practices of an agency;
“(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.
“(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....”
Article 133, Uniform Code of Military Justice,“Former Secretary of War, Newton Baker, said, ‘... the inexact or untruthful soldier trifles with the lives of his fellow men and with the honor of his government....’ The young officer needs to be able to trust his men as does any commander. In these times of expensive and increasingly complex weapons systems, the officer must rely on fellow officers and airmen for his own safety and the safety of his men.” App. 47.
“It is not an easy task to balance the opposing interests, but it is not an impossible one either. It is not necessary to conclude that to protect one of the interests, the other must, of necessity, either be abrogated or substantially subordinated. Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.”
The legislative history of the 1974 amendment of Exemption 7, which applies to investigatory files compiled for law enforcement purposes, stands in marked contrast. Under H. R. 12471, 93d Cong., 2d Sess. (1974), as originally amended and passed by the Senate, 120 Cong. Rec. 17033, 17040, 17047 (1974), although not as originally passed by the House, 120 Cong. Rec. 6819-6820 (1974), Exemption 7 was amended to exempt investigatory files compiled for law enforcement purposes only to the extent that their production would “constitute a clearly unwarranted invasion of personal privacy” or meet one of several other conditions. In response to a Presidential request to delete “clearly unwarranted” from the amendment in the interests of personal privacy, the Conference Committee dropped the “clearly,” 120 Cong. Rec. 33158-33159 (letters between President Ford and Sen. Kennedy), 34162 (letters between President Ford and Cong. Moorhead) (1974), and the bill was enacted as reported by the conference committee, 88 Stat. 1563.
The Court of Appeals held that the argument raised by the Agency that courts have a broad equitable power to decline to order release when disclosure would damage the public interest was not a substantial one in the context of Exemption 6, since that exemption itself requires a court to exercise a large measure of discretion. 495 F. 2d, at 269. The Agency has not renewed this argument in this Court.