FEDERAL BUREAU OF INVESTIGATION ET AL. v. ABRAMSON
No. 80-1735
Supreme Court of the United States
Argued January 11, 1982—Decided May 24, 1982
456 U.S. 615
Sharon T. Nelson argued the cause and filed a brief for respondent.*
*Briefs of amici curiae urging affirmance were filed by Cornish F. Hitchcock, Alan B. Morrison, David C. Vladeck, and Katherine A. Meyer for Freedom of Information Clearinghouse; and by Bruce W. Sanford, Richard M. Schmidt, Jr., Erwin G. Krasnow, Arthur B. Sackler, and J. Laurent Scharff for the Society of Professional Journalists, Sigma Delta Chi, et al.
The Freedom of Information Act (FOIA),
I
Respondent Howard Abramson is a professional journalist interested in the extent to which the White House may have used the Federal Bureau of Investigation (FBI) and its files to obtain derogatory information about political opponents. On June 23, 1976, Abramson filed a request pursuant to FOIA for specific documents relating to the transmittal from the FBI to the White House in 1969 of information concerning particular individuals who had criticized the administration.2 The Bureau denied the request on grounds that the information was exempt from disclosure pursuant to
In December 1977, after unsuccessfully appealing both denials within the agency, Abramson filed suit in the United States District Court for the District of Columbia to enjoin the FBI from withholding the requested records. While the suit was pending, the FBI provided Abramson with 84 pages of documents, some intact and some with deletions. The District Court rejected the Bureau‘s assertions that all deleted material was exempt. Abramson v. U. S. Dept. of Justice, Civ. Action No. 77-2206 (Jan. 3, 1979). In response, the FBI submitted an affidavit to the District Court explaining the justification for each deletion. In light of the released material and the Bureau‘s affidavit, Abramson mod-
The District Court found that the FBI had failed to show that the information was compiled for law enforcement rather than political purposes, but went on to rule that Exemption 7(C) was validly invoked by the Government because disclosure of the withheld materials would constitute an unwarranted invasion of personal privacy. The District Court thus granted the Government‘s motion for summary judgment with respect to material withheld pursuant to Exemption 7(C). Abramson v. FBI, Civ. Action No. 77-2206 (Nov. 30, 1979).
The Court of Appeals reversed, holding that with the exception of those documents attached to the summaries that may have been duplicates of original FBI files,4 the Government had failed to sustain its burden of demonstrating that the documents were compiled for law enforcement purposes, and that Exemption 7(C) was therefore unavailable even though disclosure would constitute an unwarranted invasion of personal privacy. 212 U. S. App. D. C. 58, 658 F. 2d
II
The Freedom of Information Act sets forth a policy of broad disclosure of Government documents in order “to ensure an informed citizenry, vital to the functioning of a democratic society.” NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 242 (1978); EPA v. Mink, 410 U. S. 73, 80 (1973). Yet Congress realized that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused. Here we are concerned with Exemption 7, which was intended to prevent premature disclosure of investigatory materials which might be used in a law enforcement action. This provision originally exempted “investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.” A sweeping interpretation given the Exemption by some courts permitted the unlimited withholding of files merely by classifying them as investigatory files compiled for law enforcement purposes. As a result, the Exemption underwent
“investigatory records compiled for law enforcement purposes but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel.”
5 U. S. C. § 552(b)(7) .
The language of the Exemption indicates that judicial review of an asserted Exemption 7 privilege requires a two-part inquiry. First, a requested document must be shown to have been an investigatory record “compiled for law enforcement purposes.” If so, the agency must demonstrate that release of the material would have one of the six results specified in the Act.5
III
No express answer is provided by the statutory language or by the legislative history. The Court of Appeals resolved the question in favor of Abramson by construing the threshold requirement of Exemption 7 in the following manner. The cover letter to the White House, along with the accompanying summaries and attachments, constituted a “record.” Because that “record” was not compiled for law enforcement purposes, the material within it could not qualify for the exemption, regardless of the purpose for which that material was originally gathered and recorded and regardless of the impact that disclosure of such information would produce. The Court of Appeals supported its interpretation by distinguishing between documents and information. “[T]he statutory scheme of the FOIA very clearly indicates that exemptions from disclosure apply only to documents, and not to the use of the information contained in such documents.” 212 U. S. App. D. C., at 65, 658 F. 2d, at 813.6 A “record” is a
The Court of Appeals’ view is a tenable construction of Exemption 7, but there is another interpretation, equally plausible on the face of the statute, of the requirement that the record sought to be withheld must have been prepared for law enforcement purposes. If a requested document, such as the one sent to the White House in this case, contains or essentially reproduces all or part of a record that was previously compiled for law enforcement reasons, it is reasonably arguable that the law enforcement record does not lose its exemption by its subsequent inclusion in a document created for a nonexempt purpose. The Court of Appeals itself pointed the way to this alternative construction by indicating that Exemption 7 protected attachments to the name check summaries that were duplicates of original records compiled for law enforcement purposes. Those records would not lose their exemption by being included in a later compilation made for political purposes. Although in this case the duplicate law enforcement records were attached to the name check summaries, the result hardly should be different if all or part
The question is whether FOIA permits the same result where the exempt record is not reproduced verbatim but is accurately reflected in summary form. The Court of Appeals would have it that because the FBI summarized the relevant records rather than reproducing them verbatim, the identical information no longer qualifies for the exemption. The originally compiled record and the derivative summary would be treated completely differently although the content of the information is the same and although the reasons for maintaining its confidentiality remain equally strong. We are of the view, however, that the statutory language is reasonably construable to protect that part of an otherwise non-exempt compilation which essentially reproduces and is substantially the equivalent of all or part of an earlier record made for law enforcement uses. Moreover, that construction of the statute rather than the interpretation embraced by the Court of Appeals, more accurately reflects the intention of Congress, is more consistent with the structure of the Act, and more fully serves the purposes of the statute.7
The 1974 amendments modified Exemption 7 in two ways. First, by substituting the word “records” for “files,” Congress intended for courts to “consider the nature of the particular document as to which exemption was claimed, in order to avoid the possibility of impermissible ‘commingling’ by an
The Court of Appeals would protect information compiled in a law enforcement record when transferred in original form to another agency for nonexempt purposes but would withdraw that protection if the same information or record is transmitted in slightly different form. In terms of the statutory objectives, this distinction makes little sense.12 If the Court of Appeals is correct that this kind of information should be disclosed, its position leaves an obvious means of qualifying for the exemption—transmittal of the law enforcement records intact. Conversely, to the extent that Congress intended information initially gathered in the course of a law enforcement investigation to remain private, the Court
IV
Neither are we persuaded by the several other arguments Abramson submits in support of the decision below.
First, we reject the argument that the legitimate interests in protecting information from disclosure under Exemption 7 are satisfied by other exemptions when a record has been recompiled for a non-law-enforcement purpose. In particular, Abramson submits that Exemption 6 suffices to protect the privacy interest of individuals. Even if this were so with respect to the particular information requested in this case, the threshold inquiry of what constitutes compilation for law enforcement purposes must be considered with regard for all six of the types of harm stemming from disclosure that Congress sought to prevent. Assuming that Exemption 6 provided fully comparable protection against disclosures which would constitute unwarranted invasions of privacy, a questionable proposition itself,13 no such companion provision in FOIA would halt the disclosure of information that might deprive an individual of a fair trial, interrupt a law enforcement investigation, safeguard confidential law enforcement techniques, or even protect the physical well-being of law en-
For much the same reason, the result we reach today is fully consistent with our holding in NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 148-154 (1975), that Exemption 5,
The result is also consistent with the oft-repeated caveat that FOIA exemptions are to be narrowly construed, Department of Air Force v. Rose, 425 U. S. 352, 361 (1976). While Congress established that the basic policy of the Act is in favor of disclosure, it recognized the important interests
We are not persuaded that Congress’ undeniable concern with possible misuse of governmental information for partisan political activity is the equivalent of a mandate to release any information which might document such activity. Congress did not differentiate between the purposes for which information was requested. NLRB v. Sears, Roebuck & Co., supra, at 149. Rather, the Act required assessment of the harm produced by disclosure of certain types of information. Once it is established that information was compiled pursuant to a legitimate law enforcement investigation and that disclosure of such information would lead to one of the listed harms, the information is exempt. Congress thus created a scheme of categorical exclusion; it did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis.14
V
We therefore find that the construction adopted by the Court of Appeals, while plausible on the face of the statute, lacks support in the legislative history and would frustrate the purposes of Exemption 7. We hold that information ini-
So ordered.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN joins, dissenting.
Exemption 7 of the Freedom of Information Act,
I cannot escape the conclusion that the Court has simply substituted the word “information” for the word “records” in Exemption 7(C). Yet we have earlier recognized that “[t]he Freedom of Information Act deals with ‘agency records,’ not information in the abstract.” Forsham v. Harris, 445 U. S. 169, 185 (1980). I agree with JUSTICE O‘CONNOR‘s assess-
JUSTICE O‘CONNOR, with whom JUSTICE MARSHALL joins, dissenting.
Justice Frankfurter once explained the limits of statutory construction as follows:
“[T]he courts are not at large. . . . They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. . . . A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction. . . . [T]he only sure safeguard against crossing the line between adjudication and legislation is an alert recognition of the necessity not to cross it and instinctive, as well as trained, reluctance to do so.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 533, 535 (1947).
I
A
“[S]tatutory construction ‘must begin with the language of the statute itself,’ and ‘[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.‘” Bread Political Action Committee v. FEC, 455 U. S. 577, 580 (1982) (citations omitted). In approaching a statute, moreover, a judge must presume that Congress chose its words with as much care as the judge himself brings to bear on the task of statutory interpretation. I begin, therefore, by focusing attention on the pertinent language of Exemption 7.
At issue in this case2 is the meaning of the seven-word phrase Congress used to describe the documents it intended to exempt: “investigatory records compiled for law enforcement purposes.” The Exemption‘s syntax is plain and unambiguous: “records” is twice modified, first, by “investigatory,” and then, by “compiled for law enforcement purposes.” Congress evidently meant to exempt “records” that are both “investigatory” and “compiled for law enforcement purposes.”3
The logic of this straightforward result is all the more compelling in light of the canons of construction peculiar to FOIA cases. As we have emphasized before, the enumerated exemptions to the FOIA “[were] explicitly made exclusive,” EPA v. Mink, 410 U. S. 73, 79 (1973), and “must be narrowly construed.” Department of Air Force v. Rose, 425 U. S. 352, 361 (1976) (citations omitted).5 The reason for preferring a narrow construction is simply that “the recognized principal purpose of the FOIA requires us to choose that in-
Under the conceded facts of the present case, however, no doubts arise.6 The records at issue were not “compiled for
B
Of course, while it is elementary that the plain language interpretation of a statute enjoys a robust presumption in its favor,7 it is also true that Congress cannot, in every instance, be counted on to have said what it meant or to have meant what it said. Statutes, therefore, “are not to be construed so strictly as to defeat the obvious intention of the legislature.” Id., at 95. Thus, a “clearly expressed legislative intention” to the contrary could dislodge the meaning apparent from the plain language of Exemption 7, even though that meaning “must ordinarily be regarded as conclusive,” Consumer Product Safety Comm‘n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980).8
The Court cites the legislative history of the 1974 amendment to Exemption 7 no more than four times during the course of its opinion. None of those citations provides anything like sufficient grounds for displacing the plain meaning of the Exemption.10 In fact, none of the Court‘s four citations directly addresses the question. In sum, the Exemp-
C
Even without the legislative history on its side, to be sure, the Court might be entitled to reject the plain language of Exemption 7 in order to avoid “patently absurd consequences,” United States v. Brown, 333 U. S. 18, 27 (1948), that Congress could not possibly have intended. The Court, however, cannot, and does not, claim that the plain language of Exemption 7 leads to such results, though the Court does level a lesser charge. In the Court‘s words:
“The Court of Appeals would protect information compiled in a law enforcement record when transferred in original form to another agency for nonexempt purposes but would withdraw that protection if the same information or record is transmitted in slightly different form. In terms of the statutory objectives, this distinction makes little sense.” Ante, at 628 (footnote omitted).
In short, the Court accuses Congress of having arbitrarily drawn the line between exempt and nonexempt materials. Congress, however, ordinarily is free to draw lines without cavil from this Court, so long as it respects the constitutional proprieties. We do not, and should not, make it our business
“In terms of the statutory objectives,” moreover, it is plain that the principal purpose of the FOIA was “to establish a general philosophy of full agency disclosure,” S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965), in order “to permit access to official information long shielded unnecessarily from public view,” even if it must come from “unwilling official
Unquestionably, of course, Congress’ intent in enacting the FOIA was not singlemindedly to require disclosure whatever the costs. Congress realized that, under certain circumstances, the costs of disclosure exceed the benefits. Congress weighed those costs and benefits, and recorded the results of its deliberations in the “clearly delineated statutory language,” S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965), of the FOIA‘s nine exclusive exemptions. The Senate Committee described the legislative balancing process: “It is 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 possible disclosure.” Ibid.
Once having completed the arduous and demanding task of balancing interests, and having recorded the results in the nine enumerated exemptions from the FOIA, Congress then attempted to insulate its product from judicial tampering and to preserve the emphasis on disclosure by admonishing that the “availability of records to the public” is not limited, “except as specifically stated.”
In short, if the Court hopes to support its result on the basis that a straightforward interpretation of the statute “makes little sense,” the Court errs, unless, of course, the “sense” to which the Court refers is to be found, not in logic, but in the Court‘s view of what makes “sense” as a matter of public policy.
II
To reach its result, the Court assumes that, through inadvertence or inattention, Congress’ pen slipped while amending Exemption 7 in 1974. Proceeding on this basis, the Court helpfully undertakes to rewrite the Exemption, substituting for the statutory phrase “investigatory records compiled for law enforcement purposes” something like “records containing investigatory information originally gathered for law enforcement purposes.”
As the Court is quick to point out, its new creation has advantages. The Court notes that “[t]he reasons for an Exemption 7 exemption” might apply to “information in a law enforcement record [that has been] recompiled in another document for a non-law-enforcement function.” Ante, at 630. The Court then suggests that, without its redaction of Exemption 7, no guarantee would exist that some other provision of the FOIA would halt disclosure. For this reason, the Court candidly concludes that “[i]t is therefore critical that the compiled-for-law-enforcement requirement be construed to avoid the release of information that would produce... undesirable results.” Ibid. Evidently, the Court arrives at
It is not the function of this Court, however, to apply the finishing touches needed to perfect legislation. Our job does not extend beyond attempting to fathom what it is that Congress produced, blemished as the Court may perceive that creation to be. Our task is solely to give effect to the intentions, as best they can be determined, of the Congress that enacted the legislation. Absent compelling evidence requiring a contrary conclusion, the best indication of Congress’ intent is Congress’ own language. Therefore, I dissent.
Notes
“This section does not apply to matters that are—
“(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
“(2) related solely to the internal personnel rules and practices of an agency;
“(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
“(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 records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;
“(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
“(9) geological and geophysical information and data, including maps, concerning wells.
“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.” Because the Government did not challenge in this Court or in the Court of Appeals the finding of the District Court that the name check summaries at issue had not been compiled for law enforcement purposes, the Court properly assumes the validity of that finding. The District Court explained its ruling as follows:
“The document at issue concerns information requested by and transmitted to the Nixon White House concerning eleven individuals. Each of these eleven individuals has been prominently associated with liberal causes and/or has been outspoken in their opposition to the war in Indochina that was being waged by this nation at that time. . . .
“The defendants contend that the White House ‘name check’ requests qualify as records compiled for law enforcement purposes because the White House has special security and appointment functions. At no point in their pleadings do the defendants relate these broad and general duties to the individuals about whom information was requested from the FBI. Thus, there has been absolutely no showing that these particular records were compiled for law enforcement purposes. Accordingly, the defendants have failed to meet their burden, and summary judgment will be granted in favor of the plaintiff on this point.” App. to Pet. for Cert. 27a.
“—Copies of any and all information contained in [FBI] files showing or indicating the transmittal of any documents or information from the FBI to the White House, or any White House aides, for the years 1969 and 1970, concerning the following individuals: Lowell P. Weicker, Jr.; Thomas J. Meskill; Joseph Duffey; Thomas J. Dodd; Alphonsus J. Donahue; John Lupton; Wallace C. Barnes; and Emilio Q. Daddario.
“—Copies of any and all information so transmitted.
“—An uncensored copy of the Oct. 6, 1969 letter from J. Edgar Hoover to John D. Ehrlichman by which Mr. Hoover transmits ‘memoranda’ on several individuals to Mr. Ehrlichman.
“—A copy of the original request letter from Mr. Ehrlichman to Mr. Hoover for that data.
“—Copies of all data so transmitted by the Oct. 6, 1969 letter from Mr. Hoover to Mr. Ehrlichman.
“—A copy of the receipt signed by the recipient at the White House of the Oct. 6, 1969, letter.” 212 U. S. App. D. C. 58, 60, 658 F. 2d 806, 808 (1980). The Court rephrases the “sole question for decision” as “whether information originally compiled for law enforcement purposes loses its Exemption 7 protection if summarized in a new document not created for law enforcement purposes.” Ante, at 623. The question presented by this case, however, is simply whether the contested documents are “investigatory records compiled for law enforcement purposes” within the meaning of Exemption 7.
“—All written requests and written records of oral or telephone requests from the White House or any person employed by the White House to the FBI for information about any person who was in 1969, 1970, 1971, 1972, 1973, or 1974 the holder of a federal elective office or a candidate for federal elective office.
“—All written replies and records of oral or telephonic replies from the FBI to the White House in response to requests described in paragraph one.
“—‘Any index or indices to requests or replies described in paragraphs one and two.‘” Id., at 61, 658 F. 2d, at 809. Strictly speaking, the Exemption is narrower than stated in text, since the Act also provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the
Notably, the Court does not attempt to cite cases interpreting the word “record” as used in the FOIA to refer to information apart from the particular tangible forms in which that information is recorded. In fact, this Court itself has said that the “[FOIA] deals with ‘agency records,’ not information in the abstract.” Forsham v. Harris, 445 U. S. 169, 185 (1980). Surely, for example, a complete summary in different words, no matter how accurate, of all the information contained in an agency record would not satisfy an FOIA request for that record.
To understand why, one need realize only that a summary often provides as much information about the individual who summarizes as it does about the material summarized. The summaries of the opinions of this Court carried in the media, for example, frequently provide a perspective, not only on the work of the Court, but also on the perceptions and judgment of the reporters and their editors.
Photocopies, on the other hand, indicate nothing about the purposes and perceptions of the persons responsible for their creation. Any significance a photocopy may have derives exclusively from its content and not from the process of its creation. Indeed, the Government usually satisfies an FOIA request by releasing a photocopy while retaining the original. A photocopy, moreover, inevitably discloses the entire original that it duplicates, while a summary discloses its sources only in part.
Thus, it is not true that the distinction Congress drew “makes little sense.” A rational Congress could have thought that a summary is likely to provide sufficient insight into the purposes of its creators and requesters to justify its disclosure under the FOIA, if it was “compiled” for other than “law enforcement purposes.” The same Congress, furthermore, could have concluded that a photocopy, which can never convey anything other than the entire contents of the original document, should not be disclosed if the original is exempt from disclosure.
Of course, there is no evidence that Congress thought about this distinction, and Congress plainly could not have considered the distinction as applied to the facts of the present case. The point, however, is only that the line drawn by the language of the statute does not lead to patently absurd consequences. Whether that distinction is well advised as a matter of sound policy is, of course, entirely another matter—and not for this Court.