*2 MacKINNON, Before WRIGHT Cir WEIGEL,* Judges, Judge. District cuit Opinion court filed Circuit
Judge J. SKELLY WRIGHT. Judge
Dissenting opinion Circuit MacKINNON. WRIGHT, Judge:
J. SKELLY Circuit This an action under the Freedom of (FOIA), Act Information (Supp. 1975), as amended V plaintiff-appellant seeks compel the Cen- Intelligence Agency tral to disclose certain be in possession con- cerning relationship Hughes with the Explorer. Glomar organizations March 1975 several news published purporting stories to describe a operation secret by the conducted * California, sitting by desig- the United for the States District Court Northern District of Of 292(d) (1970). 28 U.S.C. nation indeed, might reveal the ex- any data that figure in these stories The central States.. ” Explorer, large any such records Hughes istence of therefore ship as a research would be classified and listed publicly vessel 8; see Corpo- App. operated Summa from disclosure. owned and Second, stories, 552(b)(1).2 According ship’s stated ration. *3 operator and was the Govern- actual owner United States.
ment of the
the fact of the existence or non-existence
you request
of the records
would relate to
stories,
Following publication
these
pertaining
stories described
efforts of
other
sources and methods
the Director
convince the news media not to
the CIA to
Intelligence
responsi-
has the
of Central
public
they
what
had learned
make
about
bility
protect
disclo-
unauthorized
Explorer. The latter
the Glomar
stories
102(d)(3)
sure
accordance with section
journalist,
appellant, a
and she
interested
Security
of the National
Act of 1947 [50
request
a FOIA
for all
records
* * *3
403(d)(3) (1970)].
U.S.C. §
relating
reported
to the
contacts with the
was denied on two
media.1
App.
Accordingly,
asserted
First,
grounds.
Agency claimed that
by
information was
covered
“any
might
records that
exist which reveal
“specifi-
for information
FOIA’s
any CIA connection with or interest
in the
cally exempted
from disclosure
statute.”
Explorer-;
and,
552(b)(3).4
of the
activities
Plaintiff’s adminis-
3. 5 U.S.C.
2. 1. Plaintiff
Through
insure that
peculiarly sensitive to
means
pretations of the
been
The classification
eviscerate
Court decisions
ecutive
App. 7.
matters that
part,
It
gence
ized disclosure.
classified
tablished
foreign policy
travel
made,
the Glomar
write, publish,
(A) specifically
records of
secret in the interest
all records
other
suade
[t]hat
fact,
to, files, documents,
enacted which narrow
important
exemptions
Order
logs, telephone logs or records
any
sources
agency personnel’s attempts
the Director
the events
various amendments
requested
§
responsible for
response
552(b)(1) exempts
§
media
any kind of communications.
are
these
relating
Explorer, including, but
policy
403(d)(3) provides,
an Executive order to be
to note that
and methods from unauthor-
amendments have
authorized under criteria
or in
system
government
personal
on which
exemptions
relating
exemptions
to such Executive
of the Act.
(B)
to the
3 C.F.R. at 339
expansive judicial
of national defense or
two different
is established
are in fact
letters, memoranda,
visits,
to the activities of
Congress
Director’s or
other
not to
it has
from disclosure
agencies
to the FOIA.
scope
or
in relevant
way
broadcast,
sought
not limit-
Supreme
has been
properly
recently
provide
of each
of calls
(1974).
intelli-
order.
inter-
could
make
other
kept
here
per-
any
Ex-
es-
Administrator
stated,
overrule
to an
Sess.
Cong.,
emption
rule the decision and limit the
sion on which
they sought, Congress
more
Pub.L.
amendment
case.
U.S.C.
854,
93 S.Ct.
denied the
shine
mental Protection
seeks to
e.,
1976). Specifically,
522(b)(3)
title), provided
that the matters be withheld from the
that are—
by statute
of matters to be withheld[.]
(b)
U.S.C.
“Executive
Supreme
(3) specifically exempted from disclosure
such a
93d
issue,
This section does not
withholding
Act, Congress
recently, in
exemption statute not involved in this
2d Sess. 25
§
“The conferees intend this
94-409,
[******]
the decision
552(b)(1)
rely.
(1976); H.R.Rep.
Cong.,
§
S.Rep.
was construed
plaintiffs
manner as to leave no discretion
the FOIA as follows:
552(a)(4)(B)
Court construed the
(other
35 L.Ed.2d
FAA v.
(B)
order”) exemption broadly
the dissent
After the decision in Environ-
2d Sess. 13-15
establishes
the Government in the Sun-
No.
or refers to
5(b),
final
(Supp.
than section 552b of this
limited
access to the information
in the discussion of the
such
Robertson,
moved
94-1178,
Conference
94th
V
broadly
(Supp.
relies and which
statute
This
No.
Mink,
Supreme
1975);
apply
promptly
Cong.
(1975)”
exemption.
particular types
94th
§
(1974).
latest amend-
§
552(b)(3)
V
(A) requires
410 U.S.
language
552(b)(1) (i.
Report
to matters
S.Rep.
(Sept.
Cong.,
—a
1975);
U.S.
in which
Court in
to over-
respect
criteria
Even
deci-
94th
it is
and
No.
ex-
73,
on
2d
rejected by
appears
appeal
trative
Court that
the provi-
[i]t
or nonexis-
that existence
ground
sions of 50
U.S.C.A.
§§
records was itself
403g6
applicable
tence
are
to this situation.
un-
exempt from disclosure
Therefore,
fact
materials which the de-
(b)(1)
(3) of
FOIA.5
der Sections
fendants
have that fit
descrip-
Agency’s deter-
was the
this action
basis
tion of
materials
plain-
“that,
national
in the interest of
mination
tiff
are
from disclosure under the
by the U.S. Govern-
security,
involvement
provision
third
subject
which are the
activities
ment
Freedom of Information Act. 5 U.S.C.
neither
con-
request can
your
matter
552(b)(3).
App. 11.
nor denied.”
firmed
App. 2. In the same order the court denied
Appellant
complaint
filed her
in the Dis
appellant’s
par-
motions to have her counsel
*4
trict Court
two and a half months later.
in camera
ticipate
examination and
require
then moved to
Agency
She
the
require
provide Vaughn
the
a
justification
a
provide
detailed
for each doc
index.
ument claimed to be
from disclo
Rosen,
Vaughn
sure.
U.S.App.
Thus we are dealing with a case in which
court motion for sum It is clear that the FOIA contem judgment mary ground on the that plates that the courts will resolve funda- plainly Di- Congress of this title that ment shows of section is deter- respon- rector of Central exemptions mined that the to the FOIA should intelligence sible for sources and interpreted narrowly. be disclosure, methods from unauthorized based claim to an Agency shall be 552(b)(3) entirely § under on 50 U.S.C. require provisions of other law which 403(d)(3), supra note 3. organiza- publication or disclosure of the functions, names, titles, salaries, tion, official part, 403g provides, in relevant employed by 6. 50 U.S.C. or numbers of * * *. appears far as documents in foreign So security interests of the [i]n case, never asserted the rele- of the United States activities provision. implement proviso vance of this further to and in order id., mental issues contested cases on the basis See 157 U.S.App.D.C. in camera examinations of the relevant F.2d at 826-828. Congress specifically Department
documents. of the Air approved procedures. these S.Rep. No. 93- Rose, 352, 378, Force v. 425 U.S. Cong., S.Ct. 2d 93d Sess. 14-15 1592, 1607, (1976); Adapting procedures these 552(a)(4)(B), 1975). as amended (Supp. V present case the Agency to
Appellant maintains this authority provide affidavit explaining in as not extend to in camera does examination possible much detail as is affidavits, the basis procedure for its used below. In claim that it can required be neither peculiar context this case we must nor to deny confirm this contention. When the existence of Agency’s requested records.7 The position Agency’s is that it can argu neither confirm nor ments should then records, subject the existence of the deny testing appellant, who there are no relevant should documents for the be allowed to seek appropriate discovery court to examine other than the affidavits when necessary to Agency’s clarify explain Agency’s position refusal. There- or to identify fore, congressionally procedures to fulfill its imposed position obligation to amake de novo Only determination established. after the issues have propriety provide of a refusal been identified process should the response Court, to a FOIA District if necessary, consider argu *5 the District Court have to examine ments or information which the classified affidavits in camera and without public. unable to make participation by plaintiff’s counsel. By supplemental appellees memorandum adopting procedure,
Before such a how- adopted have now in this court the rationale ever, attempt the District Court should set forth in an affidavit by submitted Brent complete Scowcroft, create a record as is Assistant to the President for possible. In camera examination Affairs, has the Security National as the basis for necessarily defect it “is conducted continuing their refusal to confirm deny without benefit of criticism and illumina- the existence of of the request- by party tion a with the actual interest in by appellant Phillippi. Scowcroft’s affi- forcing Vaughn Rosen, disclosure.” v. su- davit was submitted in the case Military U.S.App.D.C. at pra, 484 F.2d at Project Bush, F.Supp. Audit ordinary In the ease we have attempt- (D.D.C.1976), plaintiff in which the sought remedy ed to this defect requiring a copies of the contracts for construction and justification detailed claimed operation of the Explorer. Glomar right to withhold a document. justifi- affidavit, preceded Scowcroft which was in accompanied cation must be by an index that case by a less informative affidavit correlates justifications which the asserted Government, from the asserted that with the contents of the withheld docu- requested released, documents could not be justification ment. The detailed and index denied, nor their existence confirmed or subjected can then be to criticism by the “[ojfficial because acknowledgment of the seeking party the document. If in camera specific involvement United States examination of the document is still neces- agencies Government would disclose the na- sary, the court will at least have the benefit could, ture purpose Program being able to focus on the issues identi- my judgment, in severely damage the for- fied and clarified the adversary process. eign relations and the national defense of 7. Since the “document” pellant. is current- If the District Court should decide on n remandthat the ly asserting right Agency’s withhold is confirma- refusal to confirm or requested deny tion or denial of the existence of the the existence of the records is records, requiring, we unjustified, stress that we are not Vaughn procedures, at the standard stage, Vaughn requested by ap- index affidavit, gests filing After Scowcroft States.”8 the United all the allegedly in the District contains information that affidavit the Scowcroft Court, propounded possibly merely can be made available.10 interrogatories on proposition” were answered Mr. elaborates the “basic plaintiffs there appellees urged Appellees’ have all along.11 Scowcroft. supplemental memorandum at-4. For this course, rationale that Mr. Scow- Of told, reason, we are remand futile. appellees forth and which here set croft adopt significantly differs this conclusion two seek to We reasons. First, argument Agency initially appellant, are we not convinced that Nevertheless, sug- appropriate through discovery12 Government and memo- relied.9 including preparation summary judgment, stating of a detailed index to the motion for records, any, apply. operation- if would then has been under dominion and vessel al States direction of United Government from Scowcroft, 8. Affidavit Brent Assistant to the present time); its until launch id. at B—41 to Affairs, Security ap- for National President pellees’ supplemental master, (affidavit ship’s support B-A2 memorandum 4a. summary judg- motion for Government’s ment, stating only that vessel had been used to retreat 9. The Government was forced performance of a United States Government deny any original to confirm or in- refusal project). Explorer by Glomar with the volvement Angeles. tax case Los disclosures proposition 11. The Government states this County Angeles, of Los United States v. Civil be: “there a difference in af- international 75-2752-R, No. CV C.D.Cal. Action speculation fairs between rumor and offi- governmental cial confirmation of involvement Scowcroft, supra 10. Affidavit of Brent activity.” Appellees’ supple- in a appellees’ supplemental memorandum at 3a. stated, at 4. mental memorandum proposition As so only maintains that the fact that Mr. Scowcroft original resembles stand taken Explorer the Glomar owns can clear, however, Agency. It is that avoid- been asserts be or has disclosed. He governmental ing “official confirmation of in- “fact that Explorer volvement” with Glomar is no activity sponsor of States was the involv- possible. longer supra. See note 10 Explorer” ing Hughes *6 damage security foreign our and national re- indicated, appellees have on 12. As we remand * ** lations. public justification, be asked to submit a will Answers to Plaintiffs’ Brent Scowcroft’s Inter possible, refusing is as is detailed for as rogatories, Interrogatory to Answer No. deny request- or the to existence of the confirm Bush, Military Project Audit v. 418 filed in Appellant op- ed portunity will have records. then the (D.D.C.1976) (emphasis origi F.Supp. 876 justification through ap- to test that nal). Yet released the Govern documents discovery. propriate Assuming that the County Ange in United States v. of Los ment provides no Government more information les, supra note indicate that the vessel was to is contained in the affidavits sub- than “recovery operated program” conduct be a “ Military Project, appellant’s Audit mitted discovery the States ed for United under ‘commercial’ presumably the would focus on less B-20; Appellant’s reply Add. cover.” br. at relationship than self-evident between confir- (United indemnify at B-18 States to see id. or denial of the existence of mation relating “arising operational liability agent for out of Agency to contacts between the and performance Agreement”); under this id. at disclosure, beyond the media the that al- Sponsor (“WHEREAS the B-25 United [the officially made, ready pur- of nature and “the into desires to enter a cov Government] States pose example, appellant Program.” For the with the Contractor for deliv ert contract ery process by might the which it seek learn was system operation integrated and the of confirming denying ex- determined or perform the and WHEREAS thereof to mission relating istence of records to media contacts necessity purposes operate for cover due to Agency indicate more about the na- guise under the of an overt com the mission * * * project do mining ”); than County the documents filed deep project ture of mercial sea Angeles. B-26, (affida States v. of Los See also id. at B-35 id. at B-29. Alternatively, supra. appellant might official, Corporation sup note 10 filed in vit of Summa port process summary inquire it was deter- for motion of Government’s confirming denying judgment, stating the existence mined that “the United States requested records full of the greater would constitute has had exercised control Government Hughes Explorer”); acknowledgement of in- “[o]fficial direction of the (affidavit specific to B-39 Marine volvement United States Govern- at B-38 Global id. official, support agencies,” pp.---of filed in of Government’s ment Inc. see randa, separate different, the Dis- in a case with will be unable to convince concerned position.13 Agency’s related, although trict Court to issues. Plaintiffs are en- Second, important, the course and more opportunity titled to an to conduct their inappropri- is urges us to take litigation. own Agency prevails on re- Even if the ate. judgment the District The arguments made the basis
mand on Project court, is reversed and the case is remanded Military Audit Court we can- to the proceedings in summary judgment ap- conformity for the for further not sustain opinion.14 on the basis of documents filed pellees here supra, 16; U.S.App.D.C., p. supra, H.R.Rep. supra, of 546 F.2d at No. already place. however, brief, Agency suggests For exam- taken than has ple, its 403g’s withholding has indicated that a “senior Mr. Scowcroft reference to informa that § * * * Agency Intelligence person official” of tion about the “functions Security Council committee Agency,” on the National employed nel see note 6 declassify some informa- which determined to provide to refuse to allows Explorer. Brent related to the Glomar tion anything information at all about it does. See Interrogato- to Plaintiffs’ Scowcroft’s Answers appellees’ argument, br. at 26-29. This ries, Interrogatory supra note Answer relies, dissenting colleague which our Moreover, the In- No. 17. Director of Central complete accord the from statutory responsibility pro- telligence has a 403g not think the FOIA. We do is so intelligence from un- tect sources and methods Knopf, Colby, Alfred A. broad. Cf. Inc. 403(d); disclosure. 50 see authorized U.S.C. (4th Cir.), denied, F.2d 1367-1368 cert. apparently responsibility 14 infra. That note 421 U.S. S.Ct. keeping Agency-sponsored not limited to activ- might inquire Appellant ities secret. how 403g imple Section is intended “further to or denial was determined that confirmation 403(d) proviso of section ment media, news under- contacts with domestic the Director of Central shall statutory to the Director’s re- taken responsible sponsibility, would disclose “the involvement methods sources and from unauthorized disclo agencies” specific United States Government ** purpose explic This limited sure project sought which the Director in the keep itly recognized congressional reports cit publicized. being above, and there is no indication that the Indeed, provision authorizing might change to be read as a itself section is position required position if to defend that to withhold information it the not, reason, public. extent consistent with the nation- some desire to make security. already Moreover, strongly It revised its rationale wording al of the section withholding .during information once authority specifi for pendency suggests that the it confers is ap- litigation, actions of this and its cally directed at statutes that would other currently posi- pear stated to conflict with divulge wise supra. tion. legislative about its internal structure. history supports this limited in of the section order relied on the 14. The District Court’s third *7 106, S.Rep. Cong., terpretation. No. 81st exemption and on 50 to the FOIA U.S.C. H.R.Rep. (1949); 1st 4 No. 81st 403(d)(3) 403g. Appellant Sess. and contends §§ (1949). Finally, Cong., Sess. 5 we note that 1st 403(d)(3) statutory is not a authorization that § apparently 403g itself considered § meaning information within the of to withhold case, provision inapplicable to this a limited 552(b)(3). argument. We this § since it did not assert the section as a basis for denying appellant’s 93-854, Cong., S.Rep. 93d 2d Sess. 16 No. request FOIA in either its 93-1380, Cong., (1974); H.R.Rep. 93d No. 2d responses appellant to or its fil administrative ings 12 If the can demon- Sess. strate, District Court. with the 552(a)(4)(B) (Supp. V § see 5 U.S.C. may remand the District Court also con- On 1975), that release applicability of the FOIA’s first ex- expected sider the emption, reasonably be to lead to unau- can applies informa- intelligence which to classified and disclosure of sources thorized methods, exemption statutory claimed this in its The tion. it to invoke the is entitled appellant response by 403(d) first and at all subse- protection 50 and 5 § accorded U.S.C. stages proceeding. 552(b)(3). quent of this Since infor- reasonably expected which could be mation citation We understand the District Court’s intelligence sources and methods 403g reveal also to be a reference to the § of U.S.C. classifiable, appear responsibility pre- to be see Executive Order Agency’s authority supra intelligence and since C.F.R. disclosures of vent unauthorized consistently S.Rep. that the No. claimed and methods. See sources make available to the certain So ordered. infor- demand MacKINNON, foregoing opinion would treat on the Central Circuit Intelligence Agency Judge (dissenting): this mation: does not [******] apply to matters that are— (3) specifically exempted “all records” of a certain charac- from disclosure (CIA) for “relating to the activities of the Glomar ter statute.3 ” 7) though (App. . . Explorer. . 552(b)(1)(A). U.S.C. request Freedom normal under the were a Thus, foregoing opinion when the at- (FOIA). Act But it is not. of Information tempts apply procedures appel- FOIA specifically exempt By statute the CIA request by its “It is clear lant’s assertion: other law” “any contemplates the FOIA that the courts will of it to disclose the “functions . fundamental issues resolve in contested personnel.” This is not of a discretion- [its] on the of in camera cases basis examina- and the is not from ary statute1 documents,” p.-of tions of the relevant procedure, after some involved of 546 F.2d p. 1012 U.S.App.D.C., but is an “from . . . recognize “exempt” it fails of other law” which would so provisions created, Agency, only by status of the require. recognizes special the FOIA sta- Appellant seeks to use the FOIA as the CIA, primarily by tus of the but created disposition her demand but the base for separate special own statute. specific is controlled her provisions of the CIA statute. The Act specifically exempt- is thus Since CIA establishing controlling operations it, creating the Act FOIA provides that the CIA only need assert this CIA fact when it from . .
shall . publication “the refuses or disclosure of the provisions other law which re- functions . . . .” etc.4 re- quires publication or disclosure of the quested. Once court determines that person- . functions ... nothing fact necessary. further is As Jus- Agency.2 employed nel tice said in his concurring opinion Stewart Robertson, of Information in FAA Administrator v. recognizes The Freedom Act special provides statute when it that its U.S. general requirements agencies certain which involved a factual situation properly (emphasis added). information has been classi- Id. fied, inquiries applicability into the of the two exemptions merge. tend to 552(b) (1970), (Supp. 3. 5 U.S.C. as amended V, 1975) provides: (1970) provides: 403g 1. 50 U.S.C. (b) apply This section does not security matters In the interests of the for- eign intelligence that are— activities the United (A) (1) specifically implement in order further to authorized States and under crite- proviso section title an Executive ria established order to be kept the Director of Central secret in the interest national defense responsible foreign policy (B) properly are in fact sources and methods from unauthorized dis- order; to such Executive *8 closure, the from (2) solely personnel related to the internal provisions the of section 654 of Title practices agency; rules and of an any provisions law the other which (3) specifically exempted from disclosure publication organiza- the or disclosure of the by statute. . tion, functions, names, titles, salaries, official (Emphasis added). (b)(1)(A) Subsection also employed or numbers of ground exemption furnishes a in this case Provided, Agency: in furtherance exemption might but is less broad and section, the Director of the Bureau of the showing involve a more elaborate than is re- Budget reports Congress shall make no to the quired (b)(3). under subsection in connection with the under section 947(b) 403g (1970). of Title 5. 4. 50 U.S.C. Robertson, FAA exemption Administrator v. supra, favorable than less held that the Federal Aviation Administra- statute: CIA tion, by (3) virtue of the exemp- subsection only question “to be determined in [T]he Act, tion of the Freedom of Information inquiry court’s de novo is the a district required comply was not to with the de- statute, re- existence of such factual produce mand that it Systems certain Wor- unwise, self-protective, of how gardless Analysis Program thiness Reports made might the enactment be.” or inadvertent airlines to part the FAA as of its safety Mink, n, at EPA v. U.S. [410 73] Its program. claim of was based at 35 L.Ed.2d S.Ct. [93 119.] on 49 U.S.C. provides: S.Ct. 2149. Justice U.S. Any person may objection make written opinion also concurred in the Marshall public to disclosure of information Justice Stewart. any in . report contained . . . procedural aspects The of the Freedom of to . [FAA Act] complied Information Act thus need not be objection made, Whenever such is by the because when the Act with CIA Board or Administrator shall order such “exempted provides information withheld from disclo- provisions any from the . . other . when, judgment, sure in their a disclosure .,” etc.,5 it means the entire law . . adversely of such information would af- law. person fect interests of such and is required not in the interest of the public. case, complying In this it is clear that Robertson held that this discretionary stat- appellant’s request could result in the (3) ute satisfied terms of subsection . “publication ” FOIA. highly in a secret functions activity definitely related to national secur- Following decision, the Robertson ity. precisely type That is of informa- Congress (3) 94th amended subsection designed protect.6 the Act was tion The read follows: Agen- here from the information (3) specifically exempted from disclosure plainly was not information that cy was (other by statute than section 552b of required publish or disclose. On the title), provided that such statute present permit- facts here (A) requires matters be showing ted to rest made on the withheld such a factual existence of the statute and it was to leave manner as no discretion on indulge required issue, (B) elaborate or establishes over-prove the obvious. procedure withholding criteria for or refers to technological develop- 5. Id. cant scientific and relating security, ments to the national 21, 1975, Agency’s reply May denying The might disruption foreign also result in a appellant’s stated: significantly affecting relations the national that, Mr. Duckett has determined security. security, interest of national involvement (J.A.ll). the U.S. in the activities complaint also asserted: subject your request are matter of can Agency] He further that the fact [the Therefore, neither be confirmed nor denied. of the existence or non-existence of such he has determined that the fact of the exist- pertain- records would relate to information ence or non-existence of material or doc- ing sources and methods uments exist which would reveal which the Director connection or CIA interest the activi- responsibility protect unauthor- Explorer duly ties of the Glomar ized disclosure in accordance with section Secret accordance with criteria established Security of the National Act of Acknowledge- Executive Order 403(d)(3), and therefore ment of the existence non-existence of the such records fall within 3 of the you request reasonably could FOIA, 552(b)(3). *9 expected compromise to result of im- (J.A.14). portant intelligence operations signifi- types matters to be SOTIRIADES, Georgia Appellant, withheld. 5(b), (Sept. Stat. Pub.L.
13, 1976). Health, MATHEWS, Secretary of David and Welfare. effec- Education does not become
This amendment days date of its after tive until No. 74-2075. here; enactment, controlling but it is not so Appeals, States Court plainly it important it because Circuit. District Columbia that, even after it does .become indicates Argued Dec. 1975. effective, still con- the CIA will fact, strengthened it will even be tinue. 18, Decided Nov. (3) specifically will then because matter in those from disclosure all where instances that the mat- requires . . .
statute from in such a ters be withheld leave on the as to no discretion manner . . . .7 issue added). The such statute is (Emphasis CIA it is in discre- because not couched statute terms, no specifically but tionary “Ieave[s] discretion” any other law provisions of . require the . disclosure of . . ... . . . functions employed by Agency. 403g (1970). 50 U.S.C. § present would violate statute, presently interpreted both interpreted after and as it would amendment, too clear The CIA statute was further discussion. prevent my col- designed specially what opinion require disclosing leagues’ — top protect information in order to secret It is from disclosure. sufficient pointed applicable stat- agency ute.
I respectfully dissent. necessary applicability (3)(B). It is not here to discuss the