ENVIRONMENTAL PROTECTION AGENCY ET AL. υ. MINK ET AL.
No. 71-909
Supreme Court of the United States
Argued November 9, 1972—Decided January 22, 1973
410 U.S. 73
Assistant Attorney General Cramton argued the cause for petitioners. With him on the briefs were Solicitor General Griswold, Acting Assistant Attorney General Wood, Harry R. Sachse, Walter H. Fleischer, and William Kanter.
Ramsey Clark argued the cause and filed a brief for respondents.*
MR. JUSTICE WHITE delivered the opinion of the Court.
The Freedom of Information Act of 1966,
Respondents’ lawsuit began with an article that appeared in a Washington, D. C., newspaper in late July 1971. The article indicated that the President had received conflicting recommendations on the advisability of the underground nuclear test scheduled for that coming fall and, in particular, noted that the “latest recommendations” were the product of “a departmental under-secretary committee named to investigate the controversy.” Two days later, Congresswoman Patsy Mink, a respondent, sent a telegram to the President urgently requesting the “immediate release of recommendations and report by inter-departmental committee . . . .” When the request was denied, an action under the Freedom of Information Act was commenced by Congresswoman Mink and 32 of her colleagues in the House.1
Petitioners immediately moved for summary judgment on the ground that the materials sought were specifically exempted from disclosure under subsections (b) (1) and (b) (5) of the Act.2 In support of the motion, petitioners filed an affidavit of John N. Irwin II, the Under Secretary
“prepared and used solely for transmittal to the President as advice and recommendations and set forth the views and opinions of the individuals and agencies preparing the documents so that the President might be fully apprised of varying viewpoints and have been used for no other purpose.”
In addition, at least eight (by now reduced to six) of the nine remaining documents were said to involve highly sensitive matter vital to the national defense and foreign policy and were described as having been classified Top Secret or Secret pursuant to Executive Order 10501.4
In addition, the Court of Appeals concluded that all nine contested documents fell within
The Freedom of Information Act,
It is in the context of the Act‘s attempt to provide a “workable formula” that “balances, and protects all interests,” that the conflicting claims over the documents in this case must be considered.
The language of Exemption 1 was chosen with care. According to the Senate Committee, “[t]he change of standard from ‘in the public interest’ is made both to delimit more narrowly the exception and to give it a more precise definition. The phrase ‘public interest’ in section 3 (a) of the Administrative Procedure Act has been sub-
These same sources make untenable the argument that classification of material under Executive Order 10501 is somehow insufficient for Exemption 1 purposes, or that the exemption contemplates the issuance of orders, under some other authority, for each document the Executive may want protected from disclosure under the Act. Congress could certainly have provided that the Executive Branch adopt new procedures or it could have established its own procedures—subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering. Cf. United States v. Reynolds, 345 U. S. 1 (1953). But Exemption 1 does neither. It states with the utmost directness that the Act exempts matters “specifically required by Executive order to be kept secret.” Congress was well aware of the Order and obviously accepted determinations pursuant to that Order as qualifying for exempt status under
What has been said thus far makes wholly untenable any claim that the Act intended to subject the soundness of executive security classifications to judicial review at the insistence of any objecting citizen. It also negates the proposition that Exemption 1 authorizes or permits in camera inspection of a contested document bearing a single classification so that the court may separate the secret from the supposedly nonsecret and order disclosure of the latter. The Court of Appeals was thus in error. The Irwin affidavit stated that each of the six documents for which Exemption 1 is now claimed “are and have been classified” Top Secret and Secret “pursuant to Executive Order No. 10501” and as involving “highly sensitive matter that is vital to our national defense and foreign policy.” The fact of those classifications and the documents’ characterizations have never been disputed by respondents. Accordingly, upon such a showing and in such circumstances, petitioners had met their burden of demonstrating that the documents were entitled to protection under Exemption 1, and the duty of the District Court under
Disclosure of the three documents conceded to be “unclassified” is resisted solely on the basis of
“There is a public policy involved in this claim of privilege for this advisory opinion—the policy of open, frank discussion between subordinate and chief concerning administrative action.” Id., at 48, 157 F. Supp., at 946.
The importance of this underlying policy was echoed again and again during legislative analysis and discussions of Exemption 5:
“It was pointed out in the comments of many of the agencies that it would be impossible to have any frank discussion of legal or policy matters in writing if all such writings were to be subjected to public scrutiny. It was argued, and with merit, that efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to ‘operate in a fishbowl.’ The committee is convinced of the merits of this general proposition, but it has attempted to delimit the exception as narrowly as consistent with efficient Government operation.” S. Rep. No. 813, p. 9.
See also H. R. Rep. No. 1497, p. 10. But the privilege that has been held to attach to intragovernmental memoranda clearly has finite limits, even in civil litigation. In each case, the question was whether production of the contested document would be “injurious to the consultative functions of government that the privilege of nondisclosure protects.” Kaiser Aluminum & Chemical Corp., supra., at 49, 157 F. Supp., at 946. Thus, in the absence of a claim that disclosure would jeopardize state secrets, see United States v. Reynolds, 345 U. S. 1 (1953), memoranda consisting only of compiled factual material
Nothing in the legislative history of Exemption 5 is contrary to such a construction. When the bill that ultimately became the Freedom of Information Act,
“inter-agency or intra-agency memorandums or letters dealing solely with matters of law or policy.”17
This formulation was designed to permit “[a]ll factual material in Government records . . . to be made available to the public.” S. Rep. No. 1219, 88th Cong., 2d Sess., 7 (1964). (Emphasis in original.) The formulation was severely criticized, however, on the ground that it would permit compelled disclosure of an otherwise private document simply because the document did not deal “solely” with legal or policy matters. Documents dealing with mixed questions of fact, law, and policy would inevitably, under the proposed exemption, become available to the public.18 As a result of this criticism,
Petitioners further argue that, although in camera inspection and disclosure of “low-level, routine, factual reports”19 may be contemplated by Exemption 5, that type of document is not involved in this case. Rather,
To some extent, this argument was answered by the Court of Appeals, for its remand expressly directed the District Judge to disclose only such factual material that is not “intertwined with policymaking processes” and that may safely be disclosed “without impinging on the policymaking decisional processes intended to be protected by this exemption.” We have no reason to believe that, if petitioners’ characterization of the documents is accurate, the District Judge would go beyond the limits of the remand and in any way compromise the confidentiality of deliberative information that is entitled to protection under Exemption 5.
We believe, however, that the remand now ordered by the Court of Appeals is unnecessarily rigid. The Freedom of Information Act may be invoked by any member of “the public“—without a showing of need—to compel disclosure of confidential Government documents. The unmistakable implication of the decision below is that any member of the public invoking the Act may require that otherwise confidential documents be brought forward and placed before the District Court for in camera inspection—no matter how little, if any, purely factual material may actually be contained therein. Exemption 5 mandates no such result. As was said in
Kaiser Aluminum & Chemical Corp., 141 Ct. Cl., at 50, 157 F. Supp., at 947: “It seems . . . obvious that the very purpose of the privilege, the encouragement of open expression of opinion as to governmental policy is somewhat impaired by a requirement to submit the evidence even [in camera].” Plainly, in some situations, in camera inspection will be necessary and appropriate. But it need not be automatic. An agency should be given the opportunity, by means of detailed affidavits or oral testimony, to establish to the satisfaction of the District Court that the documents sought fall clearly beyond the range of material that would be available to a private party in litigation with the agency. The burden is, of course, on the agency resisting disclosure,
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
MR. JUSTICE STEWART, concurring.
This case presents no constitutional claims, and no issues regarding the nature or scope of “Executive privilege.” It involves no effort to invoke judicial power to require any documents to be reclassified under the mandate of the new Executive Order 11652. The case before us involves only the meaning of two exemptive provisions of the so-called
My Brother DOUGLAS says that the Court makes a “shambles” of the announced purpose of that Act. But it is Congress, not the Court, that in
One would suppose that a nuclear test that engendered fierce controversy within the Executive Branch of our Government would be precisely the kind of event that should be opened to the fullest possible disclosure consistent with legitimate interests of national defense. Without such disclosure, factual information available to the concerned Executive agencies cannot be considered
But the Court‘s opinion demonstrates that Congress has conspicuously failed to attack the problem that my Brother DOUGLAS discusses. Instead, it has built into the Freedom of Information Act an exemption that provides no means to question an Executive decision to stamp a document “secret,” however cynical, myopic, or even corrupt that decision might have been.
The opinion of my Brother BRENNAN dissenting in part makes an admirably valiant effort to deflect the impact of this rigid exemption. His dissent focuses on the statutory requirement that “the court shall determine the matter de novo. . . .” But the only “matter” to be determined de novo under
As the Court points out, “Congress could certainly have provided that the Executive Branch adopt new procedures or it could have established its own procedures—subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.” But in enacting
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in part and dissenting in part.
The Court holds today that the
The Court holds that Exemption 1 immunizes from judicial scrutiny any document classified pursuant to Executive Order 10501, 3 CFR 280 (Jan. 1, 1970).1 In reaching this result, however, the Court adopts a construction of Exemption 1 that is flatly inconsistent with the legislative history and, indeed, the unambiguous language of the Act itself.2 In plain words, Exemption 1 exempts from disclosure only material “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.” (Emphasis
3 (b) “Physically Connected Documents. The classification of a file or group of physically connected documents shall be at least as high as that of the most highly classified document therein. Documents separated from the file or group shall be handled in accordance with their individual defense classification.”
3 (c) “Multiple Classification. A document, product, or substance shall bear a classification at least as high as that of its highest classified component. The document, product, or substance shall bear only one over-all classification, notwithstanding that pages, paragraphs, sections, or components thereof bear different classifications.”
Even the petitioners concede,3 no doubt in response to the “specifically required” standard of
“This court sees no basis for withholding on security grounds a document that, although separately unclassified, is regarded secret merely because it has been incorporated into a secret file. To the extent that our position in this respect is inconsistent with the above-quoted paragraph of Section 3 of Executive Order 10501, we deem it required by the terms and purpose of the [Freedom of Information Act], enacted subsequently to the Executive Order.” 150 U. S. App. D. C., at 236, 464 F. 2d, at 745.
“The same reasoning applies to this provision as to the one dealing with physically-connected documents. Secrecy by association is not favored. If the non-secret components are separable from the secret remainder and may be read separately without distortion of meaning, they too should be disclosed.” 150 U. S. App. D. C., at 237, 464 F. 2d, at 746.
Petitioners’ argument, adopted by the Court, is that this construction of the Act imputes to Congress an intent to authorize judges independently to review the Executive‘s decision to classify documents in the interest of the national defense or foreign policy. That argument simply misconceives the holding of the Court of Appeals. Information classified pursuant to § 3 (c), it must be emphasized, may receive the stamp of secrecy, not because such secrecy is necessary to promote “the national defense or foreign policy,” but simply because it constitutes a part of such other information which genuinely merits secrecy. Thus, to rectify this situation, the Court of Appeals ordered only that the District Court in camera determine “[i]f the non-secret components are separable from the secret remainder and may be read separately without distortion of meaning. . . .” The determination whether any components are in fact “non-secret” is left exclusively to the agency head representing the Executive Branch. The District Court is not authorized to declassify or to release information that the Executive, in its sound discretion, determines must be classified to “be kept secret in the interest of the national defense or
Indeed, only the Court of Appeals’ construction is consistent with the congressional plan in enacting the Freedom of Information Act. We have the word of both Houses of Congress that the de novo proceeding requirement was enacted expressly “in order that the ultimate decision as to the propriety of the agency‘s action is made by the court and prevent it from becoming meaningless judicial sanctioning of agency discretion.” S. Rep. No. 813, 89th Cong., 1st Sess., 8 (1965) (hereinafter cited as S. Rep. No. 813); H. R. Rep. No. 1497, 89th Cong., 2d Sess., 9 (1966) (hereinafter cited as H. R. Rep. No. 1497). What was granted, and purposely so, was a broad grant
The Court‘s reliance on isolated references to Executive Order 10501 in the congressional proceedings is erroneous and misleading. The Court points to a single passing reference to the Order in the House Report, which even a superficial reading reveals to be merely suggestive of the kinds of information that the Executive Branch might classify. Nothing whatever in the Report even remotely implies that the Order was to be recognized as immunizing from public disclosure the entire file of documents merely because one or even a single paragraph of one has been stamped secret. The Court also calls to its support some comments out of context of Congressmen Moss and Gallagher on the House floor. But on their face, these comments do no more than confirm that Exemption 1 was written with awareness of the existence of Executive Order 10501. Certainly, whatever significance may be attached to debating points in construing a statute,7 these comments hardly support the Court‘s conclusion that a classification pursuant to Executive Order 10501, without more, immunizes an entire document from disclosure under Exemption 1.
The Court‘s rejection of the Court of Appeals’ construction of Exemption 1 is particularly insupportable in light of the cogent confirmation of its soundness supplied by the Executive Branch itself. In direct response to the Act, Order 10501 has been revoked and replaced by Order 11652, which expressly requires classification of documents in the manner the Court of Appeals required the District Court to attempt in camera. The Order, which was issued on March 8, 1972, and became effective on June 1, 1972, 37 Fed. Reg. 5209 (Mar. 10, 1972), explicitly attributes its form to the Executive‘s desire to accommodate its procedures to the objectives of the Freedom of Information Act:
“The interests of the United States and its citizens are best served by making information regarding the affairs of Government readily available to the public. This concept of an informed citizenry is reflected in the Freedom of Information Act and in the current public information policies of the executive branch.”
Moreover, in his statement accompanying the promulgation of the new Order, the President stated: “The Executive order I have signed today is based upon . . .
The new Order recites that “some official information and material . . . bears directly on the effectiveness of our national defense and the conduct of our foreign relations” and that “[t]his official information or material, referred to as classified information or material in this order, is expressly exempted from public disclosure by
“Documents in General. Each classified document shall . . . to the extent practicable, be so marked as to indicate which portions are classified, at what level, and which portions are not classified in order to facilitate excerpting and other use.”
The President emphasized this requirement in his statement:
“A major source of unnecessary classification under the old Executive order was the practical impossibility of discerning which portions of a classified document actually required classification. Incorporation of any material from a classified paper into another document usually resulted in the classification of the new document, and innocuous portions of neither paper could be released.” 8 Presidential Documents 544 (Mar. 13, 1972) (emphasis added).
It is of course true, as the Court observes, that the Order “provides that the separating be done by the Ex-
The Court‘s interpretation of Exemption 1 as a complete bar to judicial inspection of matters claimed by the Executive to fall within it wholly frustrates the objective of the Freedom of Information Act. That interpretation makes a nullity of the Act‘s requirement of de novo judicial review. The judicial role becomes “meaningless judicial sanctioning of agency discretion,” S. Rep. No. 813, p. 8; H. R. Rep. No. 1497, p. 9, the very result Congress sought to prevent by incorporating the de novo requirement.
MR. JUSTICE DOUGLAS, dissenting.
The starting point of a decision usually indicates the result. My starting point is what I believe to be the philosophy of Congress expressed in the
Henry Steele Commager, our noted historian, recently wrote:
“The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to. Now almost everything that the Pentagon and the CIA do is shrouded in secrecy. Not only are the American people not permitted to know what they are up to but even the Congress and, one suspects, the President [witness the ‘unauthorized’ bombing of the North last fall and winter] are kept in darkness.” The New York Review of Books, Oct. 5, 1972, p. 7.
While “classified information or material” as used in the Order is exempted from public disclosure, § 4 of the Order states that each classified document shall “to the extent practicable, be so marked as to indicate which portions are classified, at what level, and which portions are not classified in order to facilitate excerpting and other use.” § 4 (A). And it goes on to say: “Material containing references to classified materials, which references do not reveal classified information, shall not be classified.” Ibid.
The Freedom of Information Act does not clash with the Executive Order. Indeed, the new Executive Order precisely meshes with the Act and with the construction given it by the Court of Appeals.
The Act and the Executive Order read together mean at the very minimum that the District Court has power
The Court of Appeals, in an exceedingly responsible opinion, directed the District Court to proceed as follows:
Where material is separately unclassified but nonetheless under the umbrella of a “secret” file, the District Court should make sure that it is disclosed under the Act. This seems clear from
§ 552 (b) which states: “This section does not apply to matters that are (1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.” Unless the unclassified appendage to a “secret” file falls under some other exception in§ 552 (b) it seems clear that it must be disclosed. The only other exception under which refuge is now sought is subsection (b) (5) which reads that the section does not apply to “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”
This exemption was described in the House Report as covering “any internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency.” H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10. It is clear from the legislative history that while opinions and staff advice are exempt, factual matters are not. Ibid.; S. Rep. No. 813, 89th Cong., 1st Sess., 9. And the courts have uniformly agreed on that construction of the Act. See Soucie v. David, 145 U. S. App. D. C. 144, 448 F. 2d 1067; Grumman Aircraft Eng. Corp. v. Renegotiation Bd., 138 U. S. App. D. C. 147, 425 F. 2d 578; Long Island R. Co. v. United States, 318 F. Supp. 490; Consumers Union v. Veterans Admin., 301 F. Supp. 796.
Facts and opinions may, as the Court of Appeals noted, be “inextricably intertwined with policymaking processes” in some cases. In such an event, secrecy prevails. Yet, where facts and opinions can be separated, the Act allows the full light of publicity to be placed on the facts.
The Government seeks to escape from the Act by making the Government stamp of “Top Secret” or “Secret” a barrier to the performance of the District Court‘s functions under
I repeat what I said in Gravel v. United States, 408 U. S. 606, 641–642 (1972) (dissenting opinion):
“[A]s has been revealed by such exposés as the Pentagon Papers, the My Lai massacres, the Gulf of Tonkin ‘incident,’ and the Bay of Pigs invasion, the Government usually suppresses damaging news but highlights favorable news. In this filtering process the secrecy stamp is the officials’ tool of suppression and it has been used to withhold in-
formation which in ‘99½%’ of the cases would present no danger to national security. To refuse to publish ‘classified’ reports would at times relegate a publisher to distributing only the press releases of Government or remaining silent; if it printed only the press releases or ‘leaks’ it would become an arm of officialdom, not its critic. Rather, in my view, when a publisher obtains a classified document he should be free to print it without fear of retribution, unless it contains material directly bearing on future, sensitive planning of the Government.”
The Government is aghast at a federal judge‘s even looking at the secret files and views with disdain the prospect of responsible judicial action in the area. It suggests that judges have no business declassifying “secrets,” that judges are not familiar with the stuff with which these “Top Secret” or “Secret” documents deal.
That is to misconceive and distort the judicial function under
Unless the District Court can do those things, the much-advertised Freedom of Information Act is on its way to becoming a shambles.1 Unless federal courts can be
trusted, the Executive will hold complete sway and by ipse dixit make even the time of day “Top Secret.” Certainly, the decision today will upset the “workable formula,” at the heart of the legislative scheme, “which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.” S. Rep. No. 813, p. 3. The Executive Branch now has carte blanche to insulate information from public scrutiny whether or not that information bears any discernible relation to the interests sought to be protected by subsection (b)(1) of the Act. We should remember the words of Madison:
“A popular Government, without popular information, or the means of acquiring it, is but a Prologue
to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”2
I would affirm the judgment below.
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
Sections 552 (b) and (c) of the Freedom of Information Act read as follows:
(b) This section does not apply to matters that are—
(1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy;
(2) related solely to the internal personnel rules and practices of an agency;
(3) specifically exempted from disclosure by statute;
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency;
(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(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. This section is not authority to withhold information from Congress.