*2 repetition necessary Knight, Alfred The because III, Nashville, H. Tenn., society plaintiff-appellant; for democratic the ideas of our William Willis, outpaced Jr., Knight machinery Willis, R. Nashville, Tenn., Barr, & society work. The needs makes that brief. outpaced the of the electorate have Schaitman, Dept, Leonard Atty., guarantee public access laws which Justice, Washington, C.,D. for defend- time In the the facts Government. ants-appellees; Gray, L. Patrick III, grow up generation takes for one Atty. Gen., Asst. Hollander, Morton join prepare and the councils Attys., Dept, Washington, of Justice, D. 1966—the 1946 to Government—from G., Anderson, Charles H. Atty., U. S. designed provide law which was Nashville, Tenn., on brief. about Government information Before MILLER, and EDWARDS Cir has the Government’s activities become Judges, cuit WILSON,* and Chief Dis major secrecy. shield of Judge. situation. will correct this S. 1160 necessary machinery provides EDWARDS, Judge. availability assure the Government presents This case the first instance necessary to an informed information in which this court has had added.) with deal (Emphasis electorate. the Freedom of Information 5 U.S. give this liti- The facts which rise to C. 552 gation complicated. The case are not The Report Committee in the House Nashville arises out of the interest Representatives light sheds this prob- publicizing Tennessean took in background old act and on the Hugh James, man, lems of a one blind legislation we construe: bought who financing under a a house in Nashville “Section 3 FHA scheme which involved Administrative (5 Procedure though mortgage. U.S.C. insurance FHA through ap- titled ‘Public Information’ had praisal an and valued house clearly purpose, $10,850. intended for Subsequently James has at been used authority as an house for with- discovered defects in the various holding, rather disclosing, than infor- made such an dubious. evaluation mation. easy Independent Such a appraisals appraised 180° turn was accomplish given language $3,750 $4,500. the broad value tried at James get of 5 original H.R.Rep.No. 1497, copy U.S.C. 1002.” Cong. 89th (1966), 2d and FHA refused to release it. There- Sess. U.S. * sitting by designa- Wilson, Tennessee, Honorable Frank W. Chief District of States District for the Eastern tion. employ equitable in its a se- considerations ran Tennessean Nashville grant or denial disclosure: the FHA criticized ries of articles which han- for their officials various (3) Except respect with dling case. para- records made available under (1) illegi- graphs subsection, gave (2) Ultimately an FHA James request appraisal. agency, on Tennes- each identifia- copy ble ble records made in accordance published under the terms filed suit sean then stating place, time, Act cited rules the Freedom of fees to the extent authorized ute, stat- District in the United States above procedure followed, Tennes- to be District of for the Middle During promptly shall make the Dis- avail- before see. *3 changed posi- person. complaint, Judge, able On the FHA the legible copies court of the United district States tion somewhat. made complainant available, the name the in which the appraisal but district resides, principal place appraiser or has his was deleted. business, agency or in which the hearing the At the conclusion situated, jurisdiction records are has requir- Judge entered an order District ing withholding enjoin agency the from appraisal make available FHA to the agency pro- records order and to the holding the but under the terms of any agency improp- duction records grounds did not equitable that FHA complainant. erly withheld from the name to make the need In such a case the court shall deter- Judge did not The District available. bur- mine the matter de novo the grounds equitable were. the state what agency the den is on to sustain its ac- Judge may Of 552(a) (3) (1970). 5 U.S.C. tion. § desire to laudable been motivated a protect privacy relatively exceptions small a Of to the statuto- the the nine against publicity ry requirement, employee wrath of most im- the the Unfortunately, great newspaper. portant purposes appeal ap- how- a this only pears 5, 552(b) (5), issue ever, no means be Title this is which § part says hypothesized. applicable as follows: which could be “(b) apply to the actual issue in this case This section does not Whether great ultimately prove or that are— be matters small, tion of this a new federal statute which has involves an interpreta- “(5) inter-agency or [******] intra-agency reaching upon impact far government future which would memorandums or letters information party oth- law to a not be available government. litigation agency about er than an 552(b) (5) agency;” 5 U.S.C. § litigation party Each to this finds (1970). something rely on. in the statute to upon relies also 552(c) The Tennessean upon as The Tennessean relies § following NLRB Get- cases: v. decided mandating disclosure: 7, 1204, L.Ed. man, 30 92 404 U.S. S.Ct. “(c) This section does not authorize (1971); York Times v. 2d 8 New withholding limit of information or 2140, 29 713, 91 S.Ct. availability pub- of records (1971); Services 822 General L.Ed.2d except specifically lic, stated in 878 Benson, F.2d 415 Administration v. authority section. This section is not upon 1969). relies FHA Cir. withhold from information Con- following for a con decided cases gress.” 552(c) (1970). 5 U.S.C. § Paper v. trary Co. International result: Commission, F.2d 438 552(a) (3) Federal Power upon FHA relies as con- denied, 404 (2d rights cert. veying Cir. de novo hence, allowing 92 it to U.S. and, District Court NLRB, problem (1972); Sears, mination at hand. Co. No Roebuck & v. Ackerly 1970); one needs to remind the courts F.2d advocacy, value U.S.App.D.C. 133, 420 F.2d confrontation and de- Ley, 137 recognized bate. These are tools judicial finding process Benson, appears these, except None of frequently are involved directly point. There the Ninth to be making decision We would not fail too. did hold that General Services protect availability their to another appraisal dis- had Administration branch of closed. dispute here, The document in how- require- determine if [T]o ever, has no such characteristic. It is met, exemption fifth ments of the (at presumably) least the finished work inquire whether the the court must product professional. of a sought or intra- inter- records agency are' appraisal An is defined memoranda or letters as “a valua- property by any party tion would not any litigation estimate of an be available person.” agency authorized hav- In- Webster’s New Dictionary ing (3d ternational involved. ed. are the And the standards for decision discovery in this case is an regulated practices, analysis involving professional of facts “The courts. law” is to determine opinion. The name of the author ais what is v. Bras- available. Cf. Davis *4 necessary part opin relevant and of that Lines, Freight Inc., well Motor 363 ion. One of the for the First reasons 1966). F.2d Amendment, as well as the Freedom of hold that Rule promote We Federal honesty Civil is to 26(b) sufficiently government by Procedure seeing broad pub that to entitle the records lic business functions under the hard dispute, especially light they public scrutiny. insofar as of full imply We nothing factual material rather than docu- in relation to the facts of this comprise ments which the administra- problems among case when we note that reasoning process personnel tive category exact here in General Services Administration v. very volved are not unknown. The name Benson, supra, 415 880. F.2d at of an could sufficient to es trigger tablish a motivation sufficient to agree We with the Ninth Circuit’s re- investigation. And, any event, an an sult in the Benson ease and with the ra- adage gained old vitality modern when just quoted tionale we have from it.1 remarked, you President Truman “If In (quoted above) heat, stay can’t stand the out of the Congress protect undertook to the deci- Bartlett, Quota kitchen.” J. Familiar making processes sion government 983a, tions ed. agencies. policy (at Government makers level) assigned whatever when to mutual We do not think that FHA com plied consultation and full debate on a deci- with the Freedom of Information sion thought should not be appraisal limited Act or when it released the with expression just preliminary those out the name of its author. FHA con views prepared tends, however, were to de- that disclosure of the its fend public prints. Many quick appraisal content voluntary was right comment—which in legal itself reveals and lack that it did not its waive full thought object consideration it, and any part to disclosure of —nonethe- continuing less including shed and useful illu- the name of the author recognize, Judge We that the Ninth case the District entered a limited affirming omitting appraiser’s was a District Court disclosure order requiring ap order praisal full disclosure of the name. with, there dealt while in our Judge’s problems posed or- stitutional claim, such a the District failure to privilege partial since no was claimed der of disclosure. here either. regard any procedural ni- Without Judge government ceties, inBut this case the bases we hold that the District argument ordering of the much of its on the that disclosure was correct Congress provided have for de order should review and that his novo injunctive appraiser. As the District Court included the name of matter, lief was where the court determined this document we see justify features, purpose squarely it. Both ac- facts the disclosure within cording government’s argument, question is not and it of the Act imply pow- exceptions equity any use of traditional within of the nine Congress recognized. And ers and hence discretion. (as distinguished in this case from Ben- question, the Act in As we view son, where the affirmed a Ninth Circuit Congressional intention was to the basic order) District Court applicabil require disclosure, absent employed powers those to withhold the ity exemptions. specific of one of appraiser’s name. provision novo review still for de already un requires review We noted that the District Court to grant conveys no believe of de novo review der the Act. the terms of powers gave discretionary vary power to the District Court it full the stand authority to under the terms of itself. review in the law ards established the Freedom of Information Act—the stay of In wherein a a District a case possessed same for decision basis sought order was from agency. agree But we do not that the Justice, him Mr. Justice as a Circuit right District Court had the to disre Black said: gard purposes and limitations of by Congress The Board was created agency. did more than Congress make fit has seen gov case, however, the Board identifiable ernment, government agencies usually quite reluctant which is other any available request. judicial power I execu person upon proper concede over the *5 strongly branch, suggests exception tive that the in Freedom of no the statutory employment injunctive re Act would autho- being automatically promptly lief all of calls into rize the board to refuse general equity the requested considerations of turn the records. over view, 1204, jurisdiction.2 Such a carried Getman, NLRB 92 v. conclusion, logical 7, (1971). its allow the would 8 S.Ct. 30 L.Ed.2d petition for Court to review a District language appears, However final this independent totally of the only expressed it is to date the view of Act and Freedom of Information one preme the States Su- member of purposes and standards. apparently And Justice Court. in that case Black had no occasion case, re In of this the context po- issues discuss the two most difficult ject familiar thesis. this tentially dis- involved in an information Congress or man can authorize law that judicial privilege and closure—executive injunctive relief without surrender date discretion. legislative ing all control over standards equity jurisdiction Getman, supra, apparent- there was because challenge ly America Steelworkers of based on court. United no to disclosure 55-59, States, 80 privilege. 39, Nor does v. United 361 claim of executive U.S. (1959). 1, also require con- 4 12 See this ease to consider the us Davis, Act: A Prelimi- The Information 2. See Consumers Union of United 767, nary 761, Administration, Analysis, F. 34 U.Chi.L.Itev. Inc. v. Veterans 301 (1967). (S.D.N.Y.1969), Supp. 796, 806-808 Virginian System Ry. 40, opinion randum “at an initial Fed’n No. v. 552-553, 592, preliminary plaintiff’s the motion for a 57 S.Ct. U.S. open injunction, (1937). FHA volunteered L.Ed. 789 copy plaintiff a court to furnish the Circuit concluded its discus- D.C. appraisal report, there- but to delete follows: sion this issue as appraiser.” from the name of Since Through general disclosure re- acquiesced supplying the FHA thus quirement specific exemptions, document, only real contents of the among Act thus strikes a balance him issue before was whether under ordinarily factors which would be Freedom Information should be eq- deemed relevant the exercise of required identity to disclose the discretion, e., public in- uitable i. appraiser. On this issue the District terest in freedom of information and “However, possi- no stated: since countervailing private public and in- purpose releasing ble would be served secrecy. use terests Since identity appraiser and based equitable principles of traditional equitable considerations, de- court prevent upset disclosure would this identity crees that the legislative conflicting in- resolution of Judge Edwards, be withheld.” well as terests,. persuaded that we are Con- parties, agree appear as the that we gress did to confer not intend on dis- appeal solely are concerned on general power deny courts applicability exception five of the equitable grounds apart relief on from Act, (5 552(b) (5), U.S.C. the text of exemptions in the Act itself. quoted opin- which is Edwards’ may exceptional There circum- key proper ion. The to a construction fairly stances in which a court could opin- supplied of this Congress conclude that intended to ion of the Ninth General operation leave room for the of limit- Benson, Services Administration judicial discretion, ed no cir- but such (1969). Construing F.2d 878 appears present cumstance in the exception, the Court in stated Benson David, record of this case. Soucie v. applicable that the test is whether U.S.App.D.C. 144, 448 F.2d documents would be ery on discov- available (Footnote omitted.) any litigation agency in which the Circuit, Like the D.C. we believe having the records be involved. Congress clearly intended to and did pointed out, As there “the standards for withholding set the standards for or dis discovery practices, decision are the closing agencies information for both the regulated by the courts.” and the courts. This case does not af 26(b) parties provides F.R.Civ.P. any special ford circumstances which regarding obtain ma- argued properly overriding can privileged terial not which is relevant to statutory mandates. subject litigation, the cluding matter of the in- judgment of the District Court is existence, description, na- *6 part affirmed in part, and reversed in ture, custody, condition and location of and the case is remanded to the District any books, tangible documents or other proceedings Court for further in accord- things identity of and location opinion. ance with this persons having knowledge any dis- of 26(b) (1). material. coverable F.R.C.P. MILLER, Judge WILLIAM E. Thus, applying criterion, is the Benson it (concurring result). having FHA, clear to me that offered the itself, contents of the document was also view, occasion, my not This is required identity disclose the generalizations concerning for broad person prepared who it. purposes, scope nature and of the Free- pointed Specifically dom of Information Act. As not I do that we are Judge required out the District memo- his this case determine exposure report qual- whether FHA that would case ify proffer publicity possible FHA em- cause for the fifth if no making overly-cautious ployees at all had Nor to be been made FHA. dispose appraisals, approved for an excuse neces- if of this do I find it precedent non-disclosure, sary may not could set a court decide whether fraught dangerous implications in in some situations under the Freedom of with general apply equitable other with activities of Information principles. connection agencies. strong governmental argument It A can officials and be dignity hardly possess equitable made that powers can said to rise to courts do equitable of an for nondisclosure. under If reason the Act. the federal discovery rules in civil cases constitute knowledge part That guide parameters fifth public and activities the names significant exception, it is that F.R.C.P. public con- their officials influence governing 26(c), proce- discovery all precisely duct is the reason that extremely dures, vest in the courts broad expo- public possibility deemed the power “protective to enter orders” to ac- important. sure so complish given justice the ends of equitable Therefore, considerations provision strongly sug- cases—a support lacking in this case to gests balancing the traditional tests of position, it is unnec- FHA’s I feel that equitable jurisdiction. Moreover, essary above, decide wheth- as stated Freedom of Information Act in- itself may not which would er situations arise injunctive power vokes the traditional Freedom warrant the courts under the equity as the enforcement mechanism. apply such consid- Information Act to Finally, court, the Benson relied in erations. Judge opinion, although adopt- Edwards’ separate here- stated For the reasons ing rules as the test result indi- in, I concur in the ultimate exception, specifically held that opinion. cated in Edwards’ the Freedom of Information Act confers equity jurisdiction on the courts: exercising equity jurisdiction
conferred the Freedom of Informa- weigh
tion the court must ef- nondisclosure,
fects of disclosure and
according equity princi- to traditional
ples, Petitioner-Appellant, MOORE, and determine the best Bernie course given follow in the circumstances. pri- effect on the is the America, STATES UNITED mary consideration. Respondent-Appellee. Although Judge apparent- No. 72-1190. ly equitable felt that considerations Appeals, United States Court quired withholding appraiser’s Ninth Circuit. name, my opinion op- is that the exact July 20, 1972. posite possible is true. Aug. governmental As conceive Modified opera- of some tions may require the nondisclo-
sure of persons per- the identities of
forming public in- functions. These stances, however, in a democratic socie-
ty, necessarily must constitute rare ex- ceptions. Generally, anonymity not privilege charged of individuals *7 responsibility transacting suggestion business of