*1 al., Plaintiffs- ROSE et Michael T. Appellants, FORCE OF the AIR
DEPARTMENT al., Defendants-Appellees. et
9,No. Docket 73-1264. Appeals,
United States Court
Second Circuit.
Argued Oct.
Decided March *2 City, plaintiffs- brief), on
York appellants. Chief, Ap- Schaitman,
Leonard Asst. pellate Section, Dept, Justice, Wash- ington, (Harlington Jr., Wood, D. C. Atty. Gen., Etra, Atty., Asst. Donald Whitney Dept, Justice, Sey- North mour, Jr., Atty., Y.,N. U. S. S. D. Wil- Bronner, Rosenberg, R. A. liam Gerald Reilly, Attys., T. U. Gorman Asst. S. brief), defendants-appellees. MOORE, Before HAYS FEIN- Judges. BERG, Circuit Judge: FEINBERG, Circuit areWe faced in this case with construing exemptions two of the (the Freedom of Information Act Act), many 552, one of 5 U.S.C. bring recent federal statutes new and difficult into the eases federal frequently ***As courts.1 the case with legislation, guide such we have little to way precedent, us in the and the brevity generality formulations leave much to be decided by the courts.
I graduate Appellant Rose, Michael T. Academy United States Air Force (the Academy) was—at time complaint year was filed—a third stu University dent New York Law School member of the Re Law Together view. with other students and Review, members of the Rose has been conducting survey sys disciplinary Academies; tems at various Service study publication is slated for in a forthcoming issue of the Review.2 In order Academy’s to document discussion of the Codes, Honor and Ethics Academy Rose asked the in autumn 1971 give Barrington copies him Parker, Jr., summaries of D. York ease New City (American adjudications, and Ethics Civil Code Liberties Union kept Academy’s Foundation, Shattuck, which H. Mel- were files. John F. Department Rosen, Wulf, Jay vin L. the Air Force Sanford New S., See Its title Associated Indus. of N. Y. Inc. tentative is “The Administrative Adjudicatory Dep’t Systems Labor, United States of the Service Acade- (2d : 344-345 & n. 1 statutes mies Constitutional Powers and Limita- cited tions.” therein. ground peal. sum fur- refused these We reverse remand for exempted compulsory- proceedings conforming maries are ther opinion. 552(b)(6), release U.S.C. §
permits agency to withhold certain inva
information
avoid unwarranted
II
privacy.3
sion of
*3
begin
stressing
by
the
We
exhausting
administrative
After
his
pass
Freedom of Information Act5 was
remedies,
joined
appellants
Rose
with
ed in
to
of
an effort
cure the defects
Charles P. Diamond and Lawrence B.
former section 3
the
(who
of
Administrative
respectively,
then,
Pedowitz
were
(APA),
Procedure Act
§
U.S.C.
5
Editor-in-Chief
the current and former
recog
(1964),
generally
1002
Review)
which “was
in
lawsuit
the
of the
this
under
falling
nized as
far short
disclo
compel
disputed
of its
the
Act to
disclosure
goals
sure
and came to
looked
be
items “with
references or
withholding
more
a
as
statute than
information
deleted
6
statute.”
noted
Judge Lloyd
Courts have
.
.”.
F. MacMahon
purpose
the Act’s remedial
towas
the
the United States District Court for
pierce
secrecy
the veil of
granted
administrative
York
Southern District
New
agency
light
open
and to
action
to
appellees (collectively
Agency)
sum-
public scrutiny.
v.
See,
g.,
e.
Hawkes
mary judgment on the
of the case
issue
787,
Service,
Internal
Although
ruling
Revenue
467
ultimately
summaries.4
(6th
Bristol-Myers
1972);
agreed
791
Co.
against
judge
appellants,
U.S.App.D.C.
FTC,
22,
v.
424 F.2d
large
138
part.
Agency
them in
with
The
935,
denied,
824, 91
grounds
938, cert.
400
put
two
forth
the district
U.S.
(1970). They
46,
S.Ct.
As until “[ojperating rules, from appellees disclosure ruled none of the district court place, by 552(b) exemptions fees 8. 5 extent § lists authorized U.S.C. statute, compulsory procedure followed, It states: and disclosure. promptly apply make shall the records This section does available not to matters any person. complaint, are— On the district (1) by specifically required or- Executive court in the district United States kept complainant resides, in der in the of to be secret interest or has foreign principal place policy; business, his the national defense or or in which (2) solely person- agency juris- situated, the internal related records are has practices agency; enjoin agency nel and an diction to holding agency rules from with- (3) specifically exempted from disclosure records to order and by statute; production any agency improp- records erly (4) complainant. or fi- trade and commercial withheld from In secrets per- nancial from a such a information obtained case the court shall determine privileged confidential; matter agency son and or de novo and the is on the burden (5) inter-agency intra-agency memo- or sustain its the event action. noncompliance not be or would randums letters which of court, with the order of by party may punish an other than available law to a the district court for agency litigation agency; contempt responsible employee, in with in and personnel (6) service, simi- and medical files and the case of a uniformed the re- sponsible Except lar of which files member. causes as to greater importance, invasion constitute unwarranted the court considers of personal privacy; proceedings court, before the district (7) compiled investigatory law paragraph, preced- files for authorized take except purposes to the extent ence enforcement on the docket over all causes party assigned hearing an other than and available agency; law to a shall be for practicable expedited earliest every way. date in (8) in or related to examina- contained pre- tion, reports operating, provides; 552(c) or condition § U.S.O. pared by, of, withholding on behalf or for the use This section not does authorize responsible regulation availability of information limit or supervision institutions; public, specifical- except or of financial records to the (9) geological geophysical ly informa- stated in this section. This section is concerning data, including maps, authority tion and not to withhold information from Congress. wells. 552(a) (3) generally Project, reads as follows : See Federal Adminis- Except respect Developments 1972, Develop- made with records trative Law — (2) paragraphs under ments available Under the Freedom of Information request subsection, agency, 1972, 178, each on 1973 Duke L.J. 187-89 Act — ; in Project] for identifiable made accordance [hereinafter records Duke John’s St. Note stating time, published 716-17; rules Davis 785-86. military procedure leadership. Indeed, future guidelines, and manuals all society, including investigators or examiners” sectors of our the ca- Government “ manage themselves, dets have a stake the fair- but not ‘matters of internal any system leads, many employee ness ment’ relations and such as instances, resignation working routine adminis forced conditions and ” very study procedures. some cadets. The involved trative . . House Rep. Cong & Admin. this case bears additional witness 10. 1966 U.S.Code degree Report professional p. and academic in- News 2427. The Senate Academy’s thought many comply sys- with the terest student-run discipline. Moreover, language tem of as we later better than the greater detail, Report, see Part III House thrust fre describe whose is most quently infra, the case summaries themselves non-disclosure.11 This toward great impact yet on and ca- court taken a firm stand the lives has subject SEC, Both of these the issue. Frankel v. F.2d reers cadets. Cf. 813, legitimate public (2 denied, Cir.), interest n. factors —the & 5 cert. 889, 125, future effect cadets —differ- U.S. 93 S.Ct. 34 L.Ed.2d (1972); Polymers, from matters of entiate the summaries Inc. v. working hours, which, daily (2 routine like cert. denied, Exemption Two, do relate words U.S. S.Ct. “solely personnel conclude, to the internal rules L.Ed.2d 502 We how agency.” (Emphasis ever, practices approach of an difference of be added.) Reports tween the House and Senate
would not affect the result here.
Report,
Similarly,
House
even the
usually
agency-oriented,
more
which is
adopt
If we
the Senate construction of
withholding the sum
does not sanction
Exemption Two, case
of Hon-
summaries
noted,
already
the
maries. As we have
adjudications clearly
or and Ethics Code
respect
Report
in
seems
House
fall outside its ambit. Such summaries
greater
permit
“matters of
disclosure
potential
public
have a substantial
except
management,”
where
internal
Appel-
interest outside the Government.
procedures
knowledge
administrative
lants have drawn our attention to vari-
regu
might help
to circumvent
outsiders
newspaper excerpts,
ous items such as
Release
lations or standards.12
press
by
Academy
conference
officer
quasi-legal
summaries,
constitute
which
Release,
and a White House Press
danger
records, poses
to the ef
no such
general
illustrate the extent of
concern
at
operation of the
fective
Codes
working
with the
of the Cadet Honor
Academy.
press
As the
Code.
conference
show,
Speculating
a different
about
Press Release
some of the interest
generated
effectiveness
has been
of threat
least en-
kind
—or
by
publication
Agency
Code,
that
of the
it-
claims
acts
Government
hanced —
gravely
under
course,
self. Of
offi-
of this material
even without such
Honor Code
encouragement,
of the
cial
in- mine the whole basis
there would be
proceedings
cadets,
system,
are cloaked
terest
in the treatment of
whose
whose
confidentiality.
of confiden
publicly
matter
education
The
is
financed and who
III
in Part
good portion
tiality
country’s
further discussed
furnish a
of the
is
Richardson,
762-63,
See,
g.,
F.
785-86;
342
11.
Tietze v.
Davis
e.
St. John’s Note
Security
(Social
(S.D.Tex.1972)
Supp.
Hawkes
Internal
610
See
v.
Revenue Serv
;
guidelines)
ice,
processing
Cuneo
(6th
claims
(D.C.D.C.1972)
F.Supp.
pointing out,
Laird,
alia,
Re
inter
the Senate
parts
man
port
congres
(“play-book”
guide
audit
contract
furnishes
the surer
ual),
v. Schlesin
nom. Cuneo
sional
remanded sub
intent
since it alone
before both
was
(D.C.Cir.1973);
first)
(the
passed
;
ger,
Con
Houses
bill
F.2d 1086
Senate
(N.
F.Supp. 958,
Ambrose,
U.S.App.D.C.
Getman v.
cord v.
training
agent
(law
D.Cal.1971)
enforcement
n.
cited
and cases
»
manual)
(dictum).
therein.
ginal
enough
point
Each
involves an essen-
here to
out
case
It is
aid.
infra.
tially
investigation
sought only
unique
into
na-
appellants
“sani-
have
invaded and
ture of the
interest
of the ease summaries
tized” versions
invasion,
proposed
infor-
extent of
with names “or
light
contemporary
response
to the
viewed in the
mation” removed.
argues
Agency
applied
point,
“that
and sensibilities as
daction
mores
particular
way
in which the total suc-
facts.
there is
guar-
process can be
cess of the deletion
pertinent
inquiry
The data
to our
con-
functioning of the
and that “the
anteed”
cern
characteristics and use
would be seri-
Honor and Ethics Codes
Honor and
case
Ethics Code
summaries.
ously impaired
if
dis-
even
inadvertent
Agency
These,
us,
tells
are extracts
possibility.”13 But
is mere
closure
significant
of the
facts in each case
any-
editing,
“total success”—in
heard
Honor
and in
Committee
impossible
thing
standard
else—is an
important
some
cases heard
the Eth-
surely
imposed by a statute
not one
(The
program
ics Committee.
Ethics
is
general
philosophy of full
based
informally.)
administered more
aAs
public.
Given
procedure,
matter of custom and
infor-
injunction
policy,
as the
as well
regarding
required
mation
such cases is
strictly,
exceptions
Act
construe
be held
the strictest confidence.
552(c),
we think it clear
U.S.C. §
are,
posted
however,
summaries
withholding
Agency’s
forty squadrons and, upon
their offi-
(as
preserve ano-
edited to
summaries
nymity)
release,
Representatives
cial
are
upheld by
reliance
cannot be
permitted
any
to discuss
feature of the
exemption.
the second
cases with the cadets for their educa-
tion. The
documents
also distrib-
Academy personnel
uted to
Ill
who
(In
“need to
guilty
know.”
or so-
argues
also
called “discretion”14 cases the
name
sought
appellants fall
summaries
deleted;
guilty
the accused is
it
cases
purview
Six
within
not.)
practice,
Therefore, in
the cur-
*6
552(b)(6),
Act,
which
confidentiality appears
tain of
to shield
and
“personnel
files
and .medical
covers
glare
these records from the
of external
which
disclosure of
similar
files the
publicity
eyes
but not
from the
clearly unwarranted
constitute a
would
present
ones,
cadets—and future
who
privacy
personal
invasion
can read
past proceed-
the summaries of
indicated,
already
.” As
ings in the Honor and Ethics Code read-
Judge
agree
ap
MacMahon did not
ing files.
they
pellees
point,
renew
but
argument
being
court. On its
their
might
These
the facts, one
ask
relevant;
Exemption
appears
face,
way
Six
in what
release of the summaries—
dealing
“personnel” or
we are
here with
with names omitted—could
increase
key words,
potential
files.” But the
invading
“similar
for
privacy
of af-
course,
“a
are
unwarranted inva
fected
sure,
cadets. To be
some cases
wholly
privacy,”
might
recognized
sion of
a
con
readers of the
clusory phrase,
requires
which
court to
a
Law Review article even in the absence
apply
without
names,
standard
by virtue of the circumstances
guidelines.
any definite
these
However,
Under
alone.
only
it
argued,
can be
circumstances, precedent
only mar-
lends
current and
Academy
former cadets and
Appellees’
Wing
brief at 26 & 9.n.
good standing.
returned to the
A discretion vote indicates a “conviction that
14. The Honor Reference
Handbook
lifelong
man has learned a
lesson
Wing
that,
Air Force
uphold
Cadet
states
vote
that he will
thereafter
the ethical
eight
Representatives,
Wing.”
six out
standards
of the
Honor Reference
may-
guilty
cadet
be found
with discretion
Handbook
Finally,
loyalty.
we
of cadet
of reference
frame
possess the
officials
parties to this
none of the
member that
reconstruct
them
enable
and foremost
is committed first
lawsuit
the summa-
described
the incidents
cadets.
It is
of affected
to the interests
only
access
they
had
had
ries, for
they are
appellees
note that
slur
originally.
these
Under
records
these
integrity
defending
primarily
dis-
might
that
conclude
conditions, one
appellants,
procedures while
great-
their own
poses no
summaries
of the
closure
pressing
course,
disclosure.
Academy
privacy
than
er threat
circumstances,
will not hold
we
these
through
dis-
limited
countenanced
itself
Agency’s internal dissemination
that the
posting
official
tribution
lessens the concerned
of the summaries
items,
constitutes
it therefore
that
right
privacy, as embodied in
reasoning
cadets’
This
at all.
no “invasion”
Exemption Six.
substantially
dis-
the basis
was
ruling that
Six
trict court
However,
release
even
while
did not bar disclosure.
nameless case histories
constitute
protected interests, the
an “invasion” of
ignores
however,
approach,
This
inquiry does not end there. The statute
First,
per
practical
realities.
certain
requires
in
to show
effectively
in
son’s
indeed, that it
vasion is “unwarranted” —
reviving
fringed
memories
dormant
“clearly”
opinion
all
so. The
by imparting
Cf.
new information.15
point,
Getman v.
146 U.S.
1971).
(4th ed.
on Torts
Prosser
827-28
App.D.C. 209,
held
268 protection identifying
panding for the erenees and all infor concern Wade, 113, 552(a)(2).17 privacy, v. mation. cf. Roe Cf. 5 U.S.C. U.S. § 705, (1973), practice furnishing L.Ed.2d we The abstracts of S.Ct. now, cases, preserving appellees anonymity, to hold that while is refuse by inspection court, any prior it without not unknown the law.18 We think appellants highly likely turn the summaries to that the over combined skills only proper applied Agency, names removed. court with procedure posing, does, summaries,19 yield as it Such grave will edited documents — reputations sought purpose risks to the of affect- sufficient for the safeguard ed “constitute a sufficient as well to affected cadets— personal priva- legitimate unwarranted invasion of in their claims privacy.20 cy.” 552(b)(6). 5 U.S.C. § keep In faith with the Act’s order We cannot close section mandate, however, equally opinion overall we de- without one further comment. Exemption cline to hold at time that We have read out brother Moore’s dis- any part of, Six all, wonderment, the sum- covers sent with a sense of since ap- Rather, “stamp maries in issue. it place ap- we follow states that we our pellants’ suggestion proval upon” “egregious alternative and re- invasion of rights privacy.” mand with district We, instructions constitutional inspection course, thing. court to conduct an camera do no such We have hold, of the Honor and Ethics Code case his- refused paragraph second tories, which it one, has never examined. Agency before this Service, quired, Hawkes v. Internal any prior inspection Revenue without (6th 1972); court, F.2d 787 Soucie v. Da- ap- to turn over the summaries to vid, U.S.App.D.C. pellants 144, only 448 F.2d proper names re- (1971); Bristol-Myers FTC, v. addition, Co. moved. In we im- have stated cert, U.S.App.D.C. 22, 935, mediately personal above that references denied, 824, 46, 400 U.S. S.Ct. 27 L. all other information Ed.2d 52 Under should be deleted from summa- case 552(a)(3), supra, note 9 opinion see If, “bur- ries. judge, district Agency den” was on the its “to sustain safeguard this is not sufficient to failing action” in privacy, to make the sum- then the summaries should not Having carry maries available. failed appellants. Obviously, disclosed to justification problem that burden of under Ex- simple would be a one if the emption Six the trial court means Freedom Information Act did ex- testimony, Agency affidavits or ist or if the interest to be consid- produce must now the summaries them- ered were that of the cadets. But court, construing selves Environmental Protec- Six is a much tion Mink, complex process 93 more than U.§. is indicated S.Ct. 35 L.Ed.2d dissent which fails to refer to the cooperate judge redacting legislative with the history Act, policy the records so as construing to delete ref- behind it or the cases it. section, requires, alia, 17. This Rep. 11, inter’ Cong. Cf. House 1966 U.S.Code publication 2428: opinions, Admin.News, p. of final statements & policy manuals, exemption and administrative staff con- *8 [six] . . . intended templates deletion of de- to cover detailed Government records on required prevent tails “[t]o the extent a an individual which can be identified personal pri- applying unwarranted invasion of to that individual and not ” vacy. concerning . . . pension facts the award of a compilation or benefit or the of unidenti- See, g., 18. Rulings e. Revenue collected statistical fied information IRS; ABA, Opinions Cum.Bull. of the [Emphasis records. added.] Professional Ethics argument 19. It was estimated at oral that there were 100-200 summaries.
269
1067,1077 (1971).
App.D.C. 144,
F.2d
event,
448
any
that the
camera
we believe
controversy
is ov
It
the true
procedure required
will further the
be that
here
case,
exceptional
goal
Exemption
er the
of an
statutory
definition
Six:
generally the Act
clear that
compromise
individual
since we are
between
workable
judicial
dis
public
constrains the use
broad
rights
preservation of
“and the
Renegoti
block
cretion to
Cf.
rights
disclosure.
information.”
to Government
Co.,
Clothing
Cong.
ation
Bannercraft
Rep.
Board v.
11,
&
1966 U.S.Code
House
21
1,
1028,
415 U.S.
94
p.
S.Ct.
39 L.Ed.2d
2428
Admin.News
(1974)
(dictum
equitable
123
power
—broad
any event,
Act).
to enforce
IV
issue
context
Six
point, the
contends
a final
As
one,
the lan
is not
since
a substantial
equitable
the courts have a broad
that
guage
exemption requires a court
power
release when
decline
order
large
of discre
to exercise a
measure
damage
public in-
disclosure
terest,
pointed
the Court
tion. This was
out
urges
we exercise this
and
that
Appeals
Columbia
the District of
jurisdiction
summaries
to withhold the
Circuit,
frequently
for the
a court
cited
Judge
rejected
completely.
MacMahon
gen
view
the federal
have no
that
courts
holding
Congress
argument,
that
jurisdiction
equitable
eral
to refuse dis
general op-
did not leave
the courts
exemption applies:
no
closure when
refusing
to enforce the Act’s re-
tion
though
discretionary balancing
quirement
“Any
even
of com-
necessarily
exemption applies.
peting
interests will
purpose of the
inconsistent with the
spilled
been
Much ink has
give agencies,
Act
courts
issue,
commenta
both
courts
guidelines
setting
well, definitive
legislative
tors,
are
and we
told
policies.
.
. But
information
history
and that the
is indeterminate22
explicit
Exemption (6),
lan-
its
appellate
divided.23
decisions are
We
balancing
guage,
for such
calls
not sure how real the conflict is
excep-
must therefore
viewed as
instances,
courts
most
since even the
general
tion to the
thrust
the Act.
opposing the
that are cited as
notion
9, explains:
S.Rep., at
general
power
equity
to refuse disclo
recognize
truly
phrase ‘clearly
exceptional
“The
in-
sure
unwarranted
personal privacy’
require
it. Tennessean
vasion
enunci-
Housing
policy
Newspapers,
ates a
will involve bal-
Inc. v. Federal
(6th
ancing
pro-
Administration,
657,
between the
464 F.2d
662
interests
private
1972);
David,
tection
an individual’s
af-
Soucie v.
145
Cir.
U.S.
657,
(6th
1972);
Moreover,
despite
gloomy
Hawkes v.
21.
661-662
Cir.
dissent’s
787,
Service,
prediction,
Internal Revenue
F.2d
792
we do
a need for
467
not envision
1972)
(6th
;
Hardin,
by judicial
n. 6
v.
Cir.
Wellford
dozens of hours of hard labor
(4th
1971)
military
contrary,
21,
;
444
24-25
Getman
F.2d
Cir.
officers. On the
once
209,
agreement
U.S.App.D.C.
general principles
v.
450 F.2d
146
is reached on
670,
(1971 ;
David,
process
redaction,
editing
v.
677-680
Soucie
actual
1067,
U.S.App.D.C. 144, 448 F.2d
1076-1077
summaries
take
undue
should
v.
Endowment
with Wu
National
amounts of time.
(5th
1030,
Humanities,
F.2d
Cir.
Compare
Rep.
Rep.
22.
House
9 with Senate
denied,
926, 93
cert.
S.Ct.
410 U.S.
1352,
(1973) ; Benson v.
35 L.Ed.2d
Administration,
Project
Thus,
F.2d
General
Duke
n.
states
Serv.
178-79
Resor,
(9th
1969).
Epstein
Fourth,
But cf.
Cir.
re
Sixth
D.C. Circuits
(9th
denied,
Cir.),
ject
930,
equitable jurisdic
general
cert.
idea
of a
sup
L.Ed.2d 549
U.S.
90 S.Ct.
tion and the Fifth and Ninth Circuits
(limited
port
Compare
courts under
role of
it.
Robles v. Environmental
(4th
exemptions).
Agency,
Prof. Davis
first
and third
Protection
equitable
1973) ;
Newspapers,
also
in the existence of
believes
Inc.
Tennessean
*9
power
Administration,
Housing
Davis 767.
refuse disclosure.
Federal
unnecessary public
who, merely
scru-
to write
Re-
from
students
a Law
fairs
note,
preservation
pry
tiny,
into
seek to
and
view
and
transgressions
governmental
public’s right
in-
the former
disclose
application
of this Air Force cadets. This is
formation.
not
case
justify
policy
particularly
attempt
which the
should lend itself
courts can
agencies
interposition
theory
where
their
on the
that
to those Government
that,
Congress
required
and
vast
failed to act
submit
has
legislate.
usually therefore,
data
must
amounts
courts
”
*
**
prohi-
purposes.
Here there is a definite statute of
for limited
majority
overrides.
bition which the
now
passing
note in
that no
ex-
We
other
When an Air Force cadet is accused of
emption specifically requires balanc-
cheating
lying, stealing or
at the Acade-
ing.
pur-
In view the Act’s basic
my,
greatest
protected
pos-
is
he
encourage
pose
limit
discretion
confidentiality.
sible
This
arise in
disclosure,
Exemption
we believe that
part
charge
from the fact that this
has
unique,
should be treated as
possible by
principle
been made
equitable
that
discretion should not be
grammar schoolyard
toleration which
imported
any
exemp-
into
of the other
parlance
or
means
“tattletale”
tions.
phrased in the record as “The backbone
U.S.App.D.C. 209,
Getman v.
of the Honor Code is the toleration
n.
674 10
requires
every
clause which
cadet
already
report
any suspected
We
decided that disclo-
violation
120). Thus,
(App.
sure of
case summaries would not
Code”
must
clearly
“a
per-
protected
unwarranted invasion of
cadet be
but also
non-
privacy”
(tattler).
Six,
sonal
under
if
tolerator
the summaries are redacted as set forth
hearings,
expected,
as would be
agree
above. We
with the
court Get-
(or
be)
are as sacrosanct as are
should
balancing
man that no further
jury
proceedings, namely,
room
“all mat-
necessary.24
hearing
ters discussed at the
are confi-
Accordingly, we reverse and
dential and should not be
out-
remand
discussed
proceedings,
anyone
for further
side the room
than
consistent with
with
opinion
expedited pursuant
Representative”
(App. 164-65).
to Honor
kept
command
552(a)(3).
of 5
The summaries of
case are
each
confidentially
except
in a
restricted
MOORE,
Judge (dissenting)
Circuit
:
small area.
express
I
vigorous
a most
dis-
passing
In
the Freedom of Information
majority’s judicial
sent to
stamp
Act,
Congress carefully
5 U.S.C. §
approval upon
egregious
invasion of
specifically
public
from
excluded
rights
constitutional
gaze:
which
opinion
their
authorizes. At a time
(6) personnel and
files and
medical
when the courts are more and more
similar
files
being
protect
called
an individu-
would constitute a
unwar-
being
al’s character
unnecessarily
personal privacy
ranted invasion of
besmirched,
being
when much is
said
prison rehabilitation,
written about
I am
any
amazed that
doctor-patient
protected,
court should
If
counte-
files are
nance—much
dealing
less authorize —the
how much
curiosi-
the more should files
ty satisfying
quasi-criminal
possible
efforts of three
law school
charac-
advisement,
While this case was under
we
their
firmed
belief
of disclo-
matter
parties
question
proper-
asked the
to brief
sure
case summaries was still
mootness,
possibility
ly
agreed
in view of
before us. We
with this conclu-
publication
plaintiffs’
proceeded
article would moot
sion and therefore
consider
response,
issue.
their
af-
both sides
merits.
*10
Academy
un-
ter-besmirching
kept
Air
to be
secret.
The
Force
will be
facts
provide you sample
disease,
to
ethics cas-
able
of
be it venereal
The disclosure
mental,
sample
The
ethics
used
or cured.
es.
cases
can be remedied
Reading
drawing
are des-
the
Code
File
of
sinister across
The
a bar
entering
ignated
Only’. It
young
‘For Official Use
of
man
escutcheon
a
career,
used
intended that these
will be
cannot
erased.
cases
his life’s
Wing
for the
Cadet
edification
officials,
mindful
The Air Force
Academy
only.
Indiscrimi-
staff
cadets,
duty
protect
their
their
to
nate release of this information
sponded
in a
which should
manner
could
a need
know
without
highest judicial commenda-
received
be counter to the best interest
disapproval. The Acade-
tion instead
the Air
individuals concerned and
Executive,
my’s
in re-
Honor and Ethics
Academy.
Force
jecting plaintiffs’ request for the case
request
When the
reached the Office
summaries, stated:
Secretary
Force, the
of the Air
regret
Academy policy re-
I
futility
any attempted
was
deletion
public
honor
quires
denial of
access
35):
pointed
(App.
out in the statement
including
files,
selected ones
case
hearing
A release of the honor
eases
Reading
All of
Honor Code
Files.
ethics
would constitute
cases
‘For
these cases are documented
into the
unwarranted invasion
Only’ and are disseminat-
Official Use
Academy.
of former
cadets
for
use
to the Honor
ed
Representatives
internal
recognized by
cases
Some
staff
few
and those
alone
reader
the circumstances
continuing
personnel
need
who have
giv-
identity of
without the
the cadet
workings
the Ca-
to understand the
being the
then the
This
en.
poor
det Honor
It would be
Code.
easily
the inci-
reader could
connect
met
with all cadets who have
faith
particular
in-
dent with the
cadet
hearings
to allow
cases
honor
their
Additionally, they
inter-
volved.
eye.
permit
public
into
To
come
nal documents which are not meant
purpose
for
the use of honor cases
such
They are
for mass circulation.
precedent
tend to set a
would
may
Only’
stamped
Use
‘For Official
operate
inno-
the detriment of
routing and
are afforded subscribed
persons.
cent
handling procedures.
guilty of an
To be accused or found
confidentiality
reasons
emotionally
honor violation is an
non-disclosure cannot be better summa-
trying experience
should,
in due
rized than
Execu-
Commandant’s
rights
respect
individu-
for the
Ethics,
stated:
tive
Honor and
who
concerned,
possible.
al
limited
be as
determining just
way
There is
no
Society
general
does
under-
how these
will or could be used.
facts
lying,
stand
difference in
way
This data
find its
could
stealing
cheating and
that constitutes
relatives,
friends and
ca-
classmates
opposed to
a Cadet Honor violation as
missing
supply
link in
dets and
degree
criminality required in
disclosing
identity
guilty
ca-
society
large
equally
to cause an
se-
person
has
a mis-
det. No
who
made
type
rious
[sic: censure].
of censor
punished
have to
take and
should
been
problems
such
misunderstand-
him for the
have this mistake follow
ing
unnecessary
embarrass-
his
rest of
life.
ment that
to exceed
could result seems
making
gained
the value
to be
And,
merely
satisfy
indeed,
de-
public.
available
case files
plaintiffs
Review
sire of
to write Law
denying
request,
note,
abet a
the Comman-
court should aid and
having
(App.
project
30):
dant of
which could result
Cadets stated
*11
subjected to
him for the rest
accused cadets are
be
follow
cadet’s “mistake
lifelong disgrace
211a).
possible
of em-
(App.
or loss
of his life.”
spokesman.
ployment
any
without
suggested
Deletion of names
majority
addi-
avail.
In
would be
course, Congress never intended
Of
names,
tion to
identifiable facts would any such result. Nor does the Act so
Eliminating
eliminated.
all
be
any implication
Lest
decree.
to this ef-
cre-
determinative essentials
gleaned
therefrom,
fect
gress
Con-
hypothetical
ate
situation.
specific prohibi-
therein
wrote
logi-
As the
of Cadets
Commandant
so
against
tion
an
invasion
“unwarranted
cally explained:
personal privacy.”
use
these case files or write-
sug-
briefly
majority’s
Consider
ups,
identity
if
of the individ-
even the
gested protection against
potential
“this
given,
ual were not
could still be an
First,
Force
serious harm”.
the Air
invasion
as the incident
summaries,
remove from
all case
may have been so notorious
involving
open
estimated
court as
one
recognize
immediately
reader would
summaries,
hundred to two hundred
all
subject
the cadet who was the
proper
Then
names.
these nameless but
Hearing.
In
or Ethics
certain
factless summaries
be turned
instances,
Wing
given
the Cadet
has
over to the District Court. There the
prerogative
the Honor Committee the
majority are sure that “the combined
grant
to a
* * *
discretion
cadet who has
Agency,
skills of court and
guilty
been voted
allow him to
* * *
yield
will
edited documents
Wing.
return to the
* *
Cadet
The man
*
safeguard
sufficient
af-
life-long
who has learned his
lesson of
legitimate
fected
in their
claims
great
honor can be a
asset
privacy.”
purpose
But for
what
Wing and to the Air Force. His re-
purpose
clear,
what cost? The
i.
only justified;
tention is therefore not
e., to have the Air Force and the Dis-
Therefore,
it is
.
desired.
.
ev-
trict Court co-author a student contribu-
ery effort is
to avoid
made
disclosure
legal periodical.
tion to a
Time cost is
of the cadet’s name so that he
Assuming only
another matter.
one
Wing
turn to the
con-
unblemished to
fifty summaries,
hundred and
vital
tinue his education.
capable
name excision should be
of ac-
majority recognize
that their de-
complishment
per
in ten minutes
sum-
anonymous
cision even with
mary
twenty-five
inconsequential
—an
expose
formerly
“could
men
accused
However,
editing
hours.
careful Court
lifelong embarrassment,
perhaps dis-
eliminate
facts would be
grace,
practical disabilities,
as well as
time-consuming. Seventy-
much more
employment
such as
loss
or friends.”
five hours of Court time would be con-
parties
These accused
real
cadets are the
days
servative.
these
when there is so
interest; yet,
majority
as the
con-
desirability
much clamor about the
cedes,
parties
“none of the
to this law-
speedy trials,
unwilling
I am
to sub-
suit is committed first and foremost to
to,
acquiesce in,
scribe
any opinion
tlie interests of affected
Even
cadets.”
which saddles such a needless burden
many
the unborn child is in
situations
important
an
branch of our mili-
guardian
(or her)
entitled to his
ad li-
tary
and, my opinion,
equal-
forces
tem and Gideon1 was deemed to
enti-
ly important
judicial
I
Hence,
branch.
through
tled to be heard
counsel. But
dissent.
Wainwright,
Gideon v.
372 U.S.
83 S.Ct.