449 U.S. 909 | SCOTUS | 1980
Dissenting Opinion
dissenting.
Because the decision in this case is subject to serious question under the reasoning of NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214 (1978), I dissent from the denial of certiorari.
The Secret Service maintains an open file on petitioner, who has twice been convicted of threatening to kill the President. In January 1976, petitioner filed an administrative request with the Service to inspect that file, or at least such portions of it as could be segregated from exempt portions.
The District Court conducted an in camera inspection of the file and then granted respondents’ motion for summary judgment, finding that disclosure “would constitute a threat to ongoing enforcement activities and to certain individuals within [and] without the Secret Service.” The Court of Appeals affirmed, 611 F. 2d 1021 (CA5 1980), relying on this Court’s interpretation of Exemption 7 (A) of the Act, 5 U. S. C. § 552 (b)(7)(A), in Robbins Tire.
The Act requires that records and materials in the possession of federal agencies be made available on demand, unless the requested material falls within one of nine statutory exemptions. Exemption 7 (A) states: “This section does not apply to matters that are ... (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 . . . .” The present language of this Exemption is the result of a 1974 amendment to the Act. The Act, prior to 1974, had exempted from disclosure all “investigatory files compiled for law enforcement purposes.” 5 U. S. C. §552 (b)(7) (1970 ed.). In Robbins Tire we surveyed the meaning and scope of Exemption 7 (A) in light of the legislative history that led to its narrowing in 1974. We concluded that the purpose of the 1974 amendment had been “to eliminate ‘blanket exemptions’ for Government records simply because they were found in investigatory files compiled for law enforcement purposes . . . .” 437 U. S., at 236.
The Court of Appeals thought that the prophylactic aim of the Secret Service distinguishes it from other law enforcement agencies that conduct “investigations with a view towards apprehending law-breakers and bringing them to justice.” 611 F. 2d, at 1025. Clearly, however, other law enforcement agencies have prophylactic goals, and the acts the Secret Service investigates are crimes. See, e. g., 18 U. S. C. § 871 (threats against the President are punishable by fine and imprisonment). If Secret Service investigations, without limitation, qualify as enforcement proceedings regardless of whether or not there is an adjudicatory proceeding pending or imminent, then arguably many investigatory files of other law enforcement agencies also qualify for exemption.
Robbins Tire concluded that a generic determination that disclosure of witness statements prior to unfair labor practice hearings would interfere with those proceedings was permissible under Exemption 7 (A). The decision of the Court of Appeals, however, did not make a generic determination with
“by substituting the word ‘records’ for ‘files/ [the 1974 amendment] would make clear that courts had 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 agency’s placing in an investigatory file material that did not legitimately have to be kept confidential.” 437 U. S., at 229-230.
Accordingly, I would issue the writ and give this case plenary consideration.
The Court of Appeals recognized that Moorefield’s convictions did not affect his right to see the file.
The Secret Service cited seven Freedom of Information Act exemptions in refusing the original request. These exemptions appear in 5 U. S. C. §§552 (b)(2), (5), (7) (A, C-F).
Lead Opinion
C. A. 5th Cir. Certiorari denied.