277 F. 569 | D.C. Cir. | 1922
This appeal is from a judgment of the Supreme Court of the District of Columbia adjudging appellant, Peter C. Harris, Adjutant General of the United States Army, in contempt of court, and requiring him to produce a certain affidavit in his official possession, or stand committed for failure to comply with the order of the court.
The order was made in a divorce proceeding pending in a court of competent jurisdiction in Summit county, Ohio, wherein Harry H. Walsh is plaintiff and Mary H. Walsh is defendant. The subpoena duces tecum issued out of the District Supreme Court, commanding the appellant to appear before a notary public in this city to testify on behalf of the plaintiff and to produce the affidavit in question.
Plaintiff, Walsh, in his petition for divorce, charges neglect of duty and extreme cruelty on the part of his wife, in that she, by filing this affidavit with the draft board at Akron, Ohio, caused him to be inducted into the military service of the United States.
The single question presented is whether appellant is required to
“who shall divulge or impart, to any person not entitled under the foregoing paragraph to receive the .same, any information contained in the record as to a registrant’s physical condition, or as to his answers concerning dependency.”
The rule further provided that—
“The portions of such records as are hereinbefore held to bo confidential shall not, without the consent of the registrant, bo produced and published in responso to any subpoena or summons of any court, except as they may be so produced and published for the purpose of being used in the prosecution of the registrant, or of any person acting in collusion with such registrant, for perjury or for.any violation of the provisions of the Selective Service Law or of these Rules and Regulations.”
It will be observed that the foregoing are exceptions to the general provision of the rule that—
“All records required by these lítales and Regulations to be filed with and kept by local and district boards, Adjutants General, and other persons in connection with the registration, examination, selection, and mobilization of registrants under the Selective Service Law, and these regulations, shall be public records and shall be open during usual business hours fdr public inspection of any and all persons.”
Section 12 of the regulations provides, as stated in the opinion of the court below:
“That whenever any registrant or other person (except one of the class of persons named in the proviso of the foregoing seel ion 11) applies to a local or district board to inspect any of the records of such boards, such registrant or other person shall not be permitted to search through such records; but it shall be the duty of members or clerks of local and district boards and other persons having the custody of such records to discover, open and point out to the registrant or other person the portion of the record containing the information requested by such person so applying; subject to the limitations as to disclosures provided in the foregoing section 11.”
While it may be said that this regulation merely restricts the method by which persons may consult the records, it is further explained by note 2, which, among other things, provides:
“The spirit and intent of the regulation requires board members to ho in possession of every available fact touching on or pertaining to eases within ¡.heir respective jurisdiction. No small amount of such information is confidential. To open to the public such information would be a breach of the*572 confidence under which persons interested in the successful operation of the Selective Service Law have furnished the information and will discourage giving further information, to the consequent serious impairment of the fair and equitable selection of registrants. The public, therefore, should not be given access to confidential records or reports. A registrant is entitled to access to his questionnaire and to the record in his case, including the record of his physical examination (form 1010, p. 227), but where such records contain statements or letters of a confidential nature, other than those offered by himself,. the names of the informants should not, without their consent, be divulged to the registrant, who is, however, entitled to be advised of all statements and allegations which form part of the records in his case. Ample precaution should be taken to prevent a registrant from ascertaining the name or names of persons who have given such confidential information.”
It is further provided in section 5 of the Regulations, 2d edition, that—
“All notes contained in these Rules and Regulations are a part thereof and have the same force and effect as the regulations themselves.”
Besides, a question of public policy is involved. The President was charged with the duty of hastily bringing into existence a great ar*my for the country’s defense. Draft boards were organized throughout the country to aid in this work. There was great temptation to registrants to avoid the draft, and it was essential that the boards should have every possible facility for securing information, and this could be best accomplished by giving assurance that the names of informants should be kept confidential.
“The application for the production of this document is by the registrant. Any right that he may have had under the regulations in question to the document being considered as confidential, he waives necessarily by his application. There is, as far as the coiirt is advised, no proceeding pending against the affiant of a criminal character. There has been a divorce suit pending between the petitioner herein, the plaintiff in the divorce suit, and his wife. Is the affidavit under those circumstances entitled to be given the scope which is claimed here by the Adjutant General? What public danger is to be apprehended, if the affidavit should be produced in this proceeding? The court does not conceive that the interests of the government would be jeoparded at all. Is it conceivable that there might arise a condition where the court would be justified in refusing to permit a defendant on trial in a criminal case to insist upon the right to know the nature of the criminal act charged? In this case the affidavit is known, the contents are known, the maker is known.”
The judgment is reversed, with costs, and the cause remanded, with directions to vacate the order holding appellant in contempt of court.
Reversed and remanded.