The Washington Post Company v. United States Department of State

case be dismissed brought in the dis-

trict Chemical, court. ICC, Genstar Ltd. v.

supra. though petitioner Even in Gen-

star “challenged the fundamental remedial

powers Commission,” this court de-

termined that the proper district court had

jurisdiction. Id. at I reluctantly 1308. con-

cur, therefore, disposition of this

case. COMPANY,

The WASHINGTON POST

Appellant,

UNITED STATES DEPARTMENT OF

STATE, al., Appellees. et

No. 80-2469.

United States Court of Appeals, Columbia Circuit.

Argued Sept. 1981. Aug.

Decided

Opinion on Denial of Rehearing En

Banc Dec. gress that disclosure should not be made despite the unavailability FOIA ex-

emption. In appeal court, its to this the Govern- ment’s presentation largely confined to a reassertion of the only by contention made it in Court, the District namely, that Ex- emption applied. Alternatively, it relies ground decision volunteered by the District Court. We affirm the District ruling Court’s regard, former but not in the latter. I 3,1979, appellant By dated October letter Post, reporter Ron- through Washington Kessler, request ald submitted a FOIA seeking access State pertaining Depart- to the all materials at 8. Arts J.A. ment’s Fine Committee. supplemented that subsequently Appellant as sheets seeking ledger well request, receipts and schedules of disbursements 19X8822 and respect with account “Emergencies fund for Secretary of State’s Post, C., Robert C. Washington, D. with and Consular Service” Diplomatic Kendall, whom John B. Kuhns and David E. Fund). supple- at 9. The J.A. (Emergency Washington, C., brief, were D. on the for sought only records request mental appellant. years. three previous pertained Dodell, Atty., Wash- Asst. U. Nathan S. denied with Appellant’s request was C., whom Charles F. C. D. ington, Emer- relating respect to materials the brief was Ruff, at the time Atty. U. S. so The Post was notified gency Fund. C., Royce D. C. Lam- filed, Washington, 29,1979, which cited letter dated October Raisler, Asst. U. S. M. and Kenneth berth U.S.C. § U.S.C. § on C., D. were Washington, Attys., bases the denial. J.A. (1976) as the for brief, for appellees. challenged denial before The Post Panel of the State Appeals Review GINSBURG, Judge, Circuit Before with- ment, the decision to which affirmed McGOWAN, Judge, and Circuit Senior the two Panel indicated hold. The the United *, Judge of Chief FRIEDMAN operated cited statutes previously of Claims. Court States under exemption from disclosure vide an filed Senior for the Court Opinion Emergen- relating to for material FOIA Judge McGOWAN. Circuit reference to cy Fund 552(b)(3) (1976). J.A. at 16. filed concurring opinion Separate a suit challenged Post this determination Judge FRIEDMAN. Chief District filed in the Court. Judge: McGOWAN, Circuit Senior Court, Department of In the District summary judgment a motion for filed State Freedom of Information appeal in a This J.A. preliminary discovery. following question (FOIA) presents case summary at 53. The Post cross-moved rejected Court, having the District whether summary partial judgment, judgment and pre- that two contention Government’s is- regard to the latter that claiming statutory pro- as a qualified statutes be decided. J.A. fact remained to sues of Exemption 3 of under hibition disclosure the District November 76. On FOIA, on hold that there went properly Order a Memorandum and Court filed from such statutes be inferred could de- motion and Department’s granting an context intention Con- historical their * 293(a). pursuant 28 U.S.C. designation Sitting 1103, 1108, 71 L.Ed.2d 199 In the nying those of the Post. 501 F.Supp. 1152 exemption, absence of a statutory the court (D.D.C.1980). general equitable has no power prevent relied, however, Court not on NLRB, disclosure of documents. Getman v. or, indeed, Exemption 3 on the FOIA (D.C.Cir.1971). 450 F.2d 670 As the Su fact, exemptions. explicitly, it ruled preme explained NLRB v. Robbins contention, contrary to the Government’s Co., 214, Tire & Rubber 437 U.S. 98 S.Ct. 3 was not applicable. It 2311, (1978): 57 L.Ed.2d 159 turned to Congress’s long-exercised instead Congress carefully structured ex- nine power, under the Statement and Account emptions from the otherwise mandatory Constitution,1 Clause the of to maintain se- requirements disclosure in order to crecy foreign affairs in gen- specified confidentiality tect privacy and eral, Emergency particu- and Fund in interests. But unless the ma- requested lar. The lengthy history court detailed a of terial falls within one these nine statu- delegation by Congress to the Executive exemptions, requires tory that rec- authority make pay- affairs possession ords and material ments disclosing without them. In the case agencies federal made available on Fund, of the Emergency the court found general demand to member of the Congress, regular evidence that in its over- public. sight fund, over the and particularly FOIA, passing, Emergency legislation subjecting after 220-21, Id. at 98 (foot- S.Ct. at 2316-2317 Fund to limited omitted). note Department See also of the by Office, audit Accounting General Air Rose, Force v. 425 352, 360-61, U.S. 96 delegated authority. had F.Supp. 501 1592, S.Ct. 1598-1599, 48 L.Ed.2d (1976); 11 at suggested 1156-57. The court that such Sears, NLRB v. Co., Roebuck & 421 U.S. legislation would be rendered meaningless 132, 136-37, 1504, 95 1509-1510, S.Ct. 44 if material secretly accounted for were sub- (1975); L.Ed.2d 29 Mink, EPA v. 410 U.S.

ject to disclosure under It FOIA. conclud- 73, 79-80, 93 832-833, S.Ct. 35 L.Ed.2d ed that 119 (1973). [ujnder circumstances, these the Court The exemption by claimed impute will not the intent for ment to be applicable this case is Exemp- such radical FOIA, disclosures under or tion which excludes from coverage the abandonment of its constitutional FOIA, matters power, plenary and the authority of Con- specifically exempted from disclosure gress in this respected. area will be (other statute than section 552b of this 501 F.Supp. at 1157. It holding is from this title), provided that (A) such statute re- Washington that the Post appeals. quires that the matters be withheld from public in such a manner toas leave no II issue, discretion on (B) establishes particular criteria for withholding re- The Freedom of Information Act fers to particular types of matters to be embodies, in the contemplation of Congress, withheld. “a general philosophy of full agency disclo sure unless information exempted 5 552(b)(3) (1976). U.S.C. particular, under In § ” clearly delineated statutory language .... relies on the proviso second S.Rep.No.813, 89th Cong., (1965). 1st of the exemption. Sess. 3 Originally this exemp- The Act pursues this result tion combining protected only a material “specifically general command disclosure, of broad exempted from disclosure statute.” In U.S.C. 552(a) (1976), specific however, § with nine Congress amended it for the exemptions. 552(b) (1976). specific purpose U.S.C. “It of closing the gap created is a commonplace expansive an reading former is to generously construed Supreme while the latter are Court. 94-409, Pub.L.No. narrowly (1976). circumscribed.” 90 Stat. 1247 Irons See H.R.Rep.No. and Sears Dann, 1215, 1219 I), v. (Part (D.C.Cir.1979), 94th Cong., (1976); Sess. 23 denied, cert. 1021, H.R.Rep.No.1441, U.S. S.Ct. 2d Sess. 25 L.Ed.2d (1976) (Conference generally Report), Bal U.S.Code Cong. dridge v. Shapiro, - U.S. -, p. Admin.News S.Ct. I, provides: Receipts Expenditures 1. Article cl. Account Money public published all shall be from time Money No shall be drawn from the Trea- sury, to time. Consequence Appropriations but in by Law; regular made Statement Robertson, 422 that, Administrator, FAA have like They excluded statutes ers. 2140, 45 Robertson, L.Ed.2d permit 95 S.Ct. one at issue in U.S. suggested had Supreme Court , the (1975) discourage disclosure at discretion FOIA, in Congress’s that, administrator, the na- promulgating limited laws numerous See, permit Ameri- public e.g., tent “was tional or interest. confidentiality allowing Congress Kreps, F.2d 624 extant Jewish then can Con (D.C.Cir.1978) (statute Id. at 95 S.Ct. prohibiting publica- stand[.]” sequently, portion the Court found information “unless tion of [administra- 1958, 49 U.S.C. Act of there- withholding Aviation that the Federal determines tor] of is nondisclosure 1504, which permitted contrary to the national interest” information of such Exemption 3). “a disclosure when within interests of adversely affect would It is clear from the proviso first in the interest not required person 3, 5 552(b)(3)(A), under qualifying to be a statute public,” deals with leaving statutes no discretion to 3 to Exemption modifying 3. In Exemption agency, that some administrative dis in clearly result, Congress overrule such cretion will not remove a statute automati towas institute its intent that dicated cally purview from of the provi second direction in change sweeping so. To hold otherwise would render that proviso meaningless. Nevertheless, disclosure. administrative thorough-going leg nevertheless, passed have, statutes Some history islative of the Act and its amend under or courts with muster ments, subsequent judicial glosses, indi suggest- 3. Statutes revised to cate that fall within the proviso second of that revision history legislative ed in the Exemption 3, a statute must set forth 42 3 include under qualifying as more than a placing standard entire (1976),22 U.S.C. 2000e-5(b), 8(e) U.S.C. §§ burden of decisionmaking on an administra 1461 49 (1976),3and U.S.C. 437g(a)(3) officer, tive checked ref amorphous this list have added to (1976).4 The courts public erence to the interest: Safety Product Consumer 6(b)(1) (B) leave for ad- 50 does room 2055(b)(1) (1976),5 Subsection Act, 15 U.S.C. § carefully in 13 ministrative discretion two 403g (1976),6and 403(d)(3) and U.S.C. §§ situations, defined but its unmistakable among oth- 8(b) 9(a) (1976),7 U.S.C. §§ Cong., I), Safety H.R.Rep.No. (Part 2d 94th Product v. 5. See Consumer Comm’n 880 2. See perti- 5(b) provides Sylvania, Inc., (1976). in Section GTE 447 U.S. 100 S.Ct. 23 Sess. [alleging (1980). “[c]harges unlawful part 64 L.Ed.2d 766 The section that nent pub- pertinent practices] part not made employment be in that shall vides Opportunity] [Equal Employment by the lic Safety] The Product [Consumer Commission 8(e) provides that Section assure, Commission.” steps prior shall take reasonable to to employ- any public or officer be unlawful . . . disclosure information obtain- It shall [of any public pursuant make in the Commission ed or to be to this ee of disclosed any obtained information chapter], whatever from which the manner that information authority pursuant identity private la- the Commission manufacturer or [the] accurate, prior readily to the institution under this section be ascertained is beler subchapter involv- any proceeding under such is fair in the circum- and that disclosure reasonably ing information. related to effectuat- such stances purposes chapte. ing the of this I), Cong., H.R.Rep.No. (Part 2d 94th 3. See 880 8 Both infra. in footnote cases cited See (1976). provided in then Sess. 23 The section quoted pages infra. 703-704 are sections (B) subsection that Any investigation Baldridge Shapiro, - U.S. -, made under 102 notification or See v. (1982). 8(b) paragraph (2) alleged [pertaining to Federal 71 199 Section S.Ct. L.Ed.2d that, particular Campaign part subject provides Election shall limi violations] public tations, by the [Federal Election] be made by any person or without Commission Secretary may furnish Commerce] [of person receiving written consent copies other ma- of tabulations and statistical respect person notification or the with not disclose the information terials do investigation is whom such made. of, any reported by, particular on behalf I), H.R.Rep.No. (Part respondent 4. See .... (1976). provided, part, 9(a) provides part Sess. 23 The section Section Commerce], Secretary [dealing nor cer- [of that “all decisions air carrier [n]either employee permits] by other officer [Civil Aeronautics] tificates agency or bureau or be be- ment of Commerce Board shall submitted President thereof, may, provided except 1461(a) as in section publication fore thereof.” U.S.C. § (1976). title— of this policy thrust ... assure that basic vide standards of the specificity requisite to governmental secrecy decisions on be qualify for Exemption 3 status. made rather than the Legislative points, Government as an indi Executive branch. particular cation of to matters withheld, to be Kreps, American Jewish phrase in 22 U.S.C. § “emer (D.C.Cir.1978). F.2d also Irons gencies arising diplomatic and consu Dann, F.2d & Sears lar service.” Only material, so it is denied, (D.C.Cir.1979), cert. 444 U.S. said, these, relates and as relates to (1980). S.Ct. L.Ed.2d money specifically designated and appropri ated by Congress, would qualify for FOIA exemption. As the District Court itself Ill noted, however, this standard, to the extent case, In the instant the statutes claimed phrase one, constitutes is simply Exemp- fall the Government to within too broad: tion 3 and 31 are Every necessarily statute refer, will provides, The former more or specificity, less ‘particular pertinent part, types of matter.’ ... permit To to— Secretary of State authorized fact that all payments were made from (a) expenditures, make from such the Emergency Fund to be itself a appropri- amounts as specifically sufficient standard to satisfy ‘particu- therefor, emergencies ated for unforeseen lar types of matter re- withheld’ diplomatic ser- arising consular quirement would rob the standard and, ap- vice to the extent authorized in meaning. Acts, expended propriations funds for 501 F.Supp. at 1155. In denying Exemp- purposes may be accounted for in tion status 7(c) of the Export § Admin- accordance with section 107 of title 31 istration Act of 50 U.S.C.App. 2406(c) (1970), § for example, this in- court provides U.S.C. § timated that the referent of the statute’s Whenever has any money sum of been or definition of “particular types of matter” issued, Treasury, shall be for from the was simply too vast for the statute to quali- purposes treaty of intercourse or fy, despite designation of matters of nations, law, pursuance any particular types. American Jewish Con- the President is to cause the authorized gress v. Kreps, (D.C. duly annually same settled the Cir.1978). Office, by Accounting General causing The statutes, as interpreted by the agen- for, specifically, the same to be accounted cy, also, are in the view of the District expenditure may, judgment, if the in his Court, too broad. 22 U.S.C. 2671 might § public; by making be made or have met the Exemption 3 test were the causing the Secretary State make a expenditures pursuant incurred to it basi- certificate of the of such expendi- amount cally of one narrow type. But the Govern- ture, he it think advisable not to ment’s submission to the District Court in- every specify; such certificate shall dicates a vast array of falling matters with- be deemed a sufficient voucher for the in the “emergencies” rubric, ranging from expressed to sum therein have been ex- Fine Arts expenditures Committee to travel pended. expenditures for official delegations. 501 Thus, together contemplate the sections F.Supp. at 1158-59. This range does not emergency foreign affairs for become particular merely because Congress Secretary of which the President or State may have had some for opportunity over- secrecy. Appellee Depart- account in seeing it. The statute is, therefore, itself State, Court, ment of here as in too broad to qualify for Exemption 3 with- statutes, alone asserts that these taken or in holding, even as construed by the context, legislative their historical and ment. identified; (1) under title can be furnished under the individual this use the information any purpose provisions other or this title for (3) permit anyone purposes than the sworn offi- for which other than statistical employees or supplied; cers whereby agency publication (2) to examine the indi- data bureau thereof make reports. particular vidual establishment furnished example, have argues pursuant that the relation- been withheld Appellee further 31 the first exemption, 2671 and set forth at 5 U.S.C. U.S.C. ship § between statutes, 552(b)(1). particular- and other § U.S.C. (1976), 403(d)(3) suggests ly 50 legislative history result. contrary IV 3 indicates Exemption the amendment concluding disputed that the mate- Upon Ex- contemplated continued protection rial did not fall within the 403(d)(3). for H.R. emption 3 status 3—the claimed Exemption (Part II), Cong., 2d Sess. Rep.No. 880 went on to state for it —the District Court H.R.Rep.No. 93d 15 n.2 Cf. that for the Post (1974); S.Rep.No. Cong., 2d Sess. case, would prevail (same result 2d Sess. 16 required to find that the Freedom of In- 3). earlier formulation of under repeal formation was intended 403(d)(3) and also have found that Courts long-exercised authority by Con- [the] section, (1976), 403g a related U.S.C. § gress secrecy expendi- to maintain fall within 3.8 affecting ture of funds the nation’s for- statutes, however, These share little but relations, and, eign particular, secrecy subject matter. origins general common from the Emergency 403g, which relates to the Cen- Fund. Intelligence Agency, provides tral that “the This, F.Supp. at 1157. the court would functions, names, organization, official ti- not find. For its conclusion that tles, salaries, personnel or numbers of em- disclosure, had intended to allow no it relied ployed by Agency” protected shall be history purported on this as well as on the specific designation from disclosure. This displacement limited of FOIA evidenced materials, with the combined section legislation. certain more recent See Pub. 403(d)(3) the Director of mandate “[t]hat 96-226, (1980); L.No. Stat. Intelligence responsible Central shall be F.Supp. at 1157 & n.7.9 protecting intelligence sources and methods disclosure,” provides from It unauthorized uncontroverted that Congress has vastly precise blueprint power and, indeed, more than do the to maintain secrecy it has open-ended frequently two statutes relied in this exercised it. The question us, however, before whether, case. in the face Congress’s of strong mandate of that Appellee privilege also contends expressed FOIA, disclosure in may we con- accounting expenditures pro- of secret for clude that it intended to exercise that pow- Secretary vided the President and of State prevent er to disclosure in this instance. bespeaks 31 107 an intent of by Congressional to The Congress to allow those be debate following the in Robertson secrecy, claiming maintained absolute decision indicates that it did not. Robertson, it would be foolish to account certif- the Supreme that Court declined interpret icate for to subsequently (1) dis- FOIA as it though had repealed “by implication closed under FOIA. This be an ap- existing all stat pealing argument for utes ‘which restrict exemption; public FOIA access to specific ” not, however, records,’ does Government qualifica- establish the at U.S. at quoting H.R.Rep.No. 1497, tion of the statute under 3. S.Ct. could, Any properly (1966), classified material for Sess. U.S.Code part by presaged CIA, (D.C.Cir. This conclusion was Halperin v. 8. See appellant’s CIA, 1980); (D.C.Cir. comment to coun- District Court’s 607 F.2d 339 Goland v. sel, denied, hearing 1978), on the cross-motions for 445 U.S. S.Ct. cert. Turner, summary judgment, (1980); Ray that v. 63 L.Ed.2d CIA, (D.C.Cir.1978); Baker v. F.2d 1187 area You are in a traditional historical CIA, 1978); (D.C.Cir. contemplate F.2d 664 Weissman disclo- no one would such where CIA, (D.C.Cir. 1977); Phillippi Washington except F.2d 692 Post.. .. [Y]ou sure Note, (D.C.Cir. 1976). opening-up See also asking F.2d 1009 for are a broad confidentiality, history the 1976 Amendment to Effect of entire traditional Act, of Information Three of the Freedom going conduct to the heart of the President’s (1976) (discuss 1044 n.91 key aspects Colum.L.Rev. affairs. O’Reilly, ing 403g). Federal Infor Transcript Cf. J. T. at 20-21. (1977) (implying 13.07 ex mation Disclosure 552(b)(3)(A)). emption under § Cong. (2) material; & p. apply Admin.News court —does not that, to this to “every intended reassess in the delegation applicable absence other exemption, authority power withhold information which it the courts lack the to bar had made before the disclosure passage legisla permanently. remand, of this On ” Court, tion instead, .... Id. The District assert consider the applicabili- ed its purpose interpret FOIA, ty other FOIA exemptions, whether possible, extent consistently raised pre such of State or vious legislation. itself, sponte.10 court sua for possible reviewing It a court The subsequent professedly —and about have substantial reservations the wis- responsive by Congress to amend —action public dom of disclosure of various kinds of Exemption 3 to “eliminate the gap created has, Congress materials wittingly in the Freedom of Information Act by unwittingly, brought in terms within the case,” Robertson H.RRep.No. (Part I), unlikely reach FOIA. is not broad It 94th Cong., 2d Sess. 23 (1976), U.S.Code which, there if that are circumstances Cong. & p. 2205, Admin.News emphat Congressional attention were be focussed ically Congress’s demonstrated intent that directly upon a disclosure mandated must taken something to be more FOIA, it elect to narrow the scope would than ordinary statute, an namely, the defin statute, just as its focus itive word on disclosure of the information by the Supreme disclosure denied Court in in the Government’s possession covered it explicitly Robertson caused to broaden it. S.Rep.No. 813, 89th Cong., 1st Sess. But, Congress the Act. until acts in re- 3 (1965). Other legislation, history, its stimulus, a sponse there is no dis- powers of Congress underlying it are not to pensing power presently vested in the be ignored, but are to be taken as justifying repair arguably courts to what may have refusal to disclose only when they meet the an oversight. been That can be done strictures one of specific exemptions itself. most a court included in FOIA. Consequently, when the be, a could do situation would beyond Court went its determina response strong showing to a of imminent tion that the material did not fall within danger compelling and demonstrable the relevant FOIA exemption, and asked interest, to stay judgment national whether power had the to prevent give Congress time to an opportunity to disclosure and had in fact exercised such See, oversight, correct its if such it be.11 power past, it asked a question an e.g., judgment order of this court affirmative answer to which could not fore American Banks Association and Tioga close appellant’s right to disclosure. Connell, (D.C.Cir.1979). Bank v. State holding, In so arewe un derstood implying that there is no FOIA reasons, we foregoing could For the reverse conceivably encom pass disputed Rather, grant summary judgment by material. we as sert as only, Court, appellee Department did the District District Court to State, 3—the only (2) appellant and affirm the denial exemption claimed the by Department summary judgment, motion with- in Post!s for State this part suggested con- 10. Cases in of the District Court’s which The second courts have or Congressional clusion, relying upon applicability exemptions ac- raised the recent of FOIA sua reasoning tion, sponte unlike its in another FOIA is not include Greentree v. United States Cus- case, Service, Corp. F.Supp. Reve- toms (D.D.C.198I), v. United States Internal Zale Service, (D.D.C.1979). F.Supp. 486 reversed nue and remanded for consideration of Congressional exemptions, suggests (D.C.Cir. ac- other FOIA Zale well that 674 F.2d 74 1982); post-FOIA CIA, tion, particularly legislation, F.Supp. (D.D.C. Sims v. and 1979), FOIA, may in circum- grounds, at least limited vacated and override remanded on other opinion (D.C.Cir.1980); Dunaway no on the While we intimate stances. v. Web- ster, case, holding, F.Supp. as in a (N.D.Cal.1981). we note that Zale Anheuser-Busch, case, Internal Inc. v. similar Service, (D.D.C. F.Supp. 549 Revenue appropriate evaluating 11. The for 1980), specifically standard held that District Court the danger event, claims of would, prevent- the national have interest suggested by analogy disputed to dicta first In the amend- of the material. ed disclosure dealing prior case, ment holding cases of the Court restraints on the instant publication: contrary. expressly to the was un- the to meet by motion of State Secretary to a second the prejudice out enable Diplo- arising be unable to emergencies the Government foreseen Post should Service,” ex- account- other to be applicability and Consular matic establish Sept. 107. Act for under section ed emptions. 96-68, I, title Pub.L.No. Stat. to the District this case remand of Our however, shall, prejudice be without Court Second, passed the Gen- Department application by an 1980, Pub. choose, Act of Accounting to the District Office State, if should so eral 96-226, mandated 311. Section judgment L.No. 94 Stat. stay for a Accounting and Office purpose opinion, for authorizes General solely for Any accounted expenditure indicated. an showing hereinabove audit such whether only entered after “to determine such shall be certificate stay fact, was, actually made may de- expenditure as the District Court proceedings was authorized exploration expenditure for the such necessary whether termine to be IV 67(f)(1) (Supp. interest as- to the national law.” 31 U.S.C. dangers § State, 1980). serted findings by the District upon appropriate control and imposes the Act While be of fixed dura- stay should Court. Such their confi- expenditures, oversight on those may time as period only tion and for results of The is maintained. dentiality exhaustion for the reasonably required released audits purpose. of its in- agency the head of President and It is so ordered. discrepancies, and, in cases solely volved on Government Committee to Affairs, Senate on Govern- the House Committee concurring: FRIEDMAN, Judge, Chief and House Operations, and Senate ment perplexing case This is a difficult appropri- having legislative committees two reconciliation of requires agency. particular authority over ations directives. conflicting congressional lines of 67(f)(2). Id. § hand, sets of statutes 1. On the one two from exempt Further, President First, secrecy. there are the stat- counsel to sensi- “which relate expenditures audit authorizing Secretary to account utes counter- foreign or intelligence foreign tive by merely certifying for these law en- activities, or sensitive intelligence their disclosing their amount without na- Id. investigations.” forcement 2671(a) (1976); ture. 22 31 U.S.C. 67(f)(3)(B). accounting procedure Comp- gives 102 of the Act Section relating foreign affairs for conduct subpoena powers General troller through certificates is almost as old secretly however, cannot, issue He the audits. In the Act of Feb. as the Constitution. materials relat- (1) for subpoena enforce 299, 300, IV, 2, 1 ch. Stat. coun- foreign intelligence or foreign ing President to account for all empowered the that, activities; (2) materials terintelligence of inter- spent purposes “for the money him, un- statute, cannot be disclosed nations,” treaty, ei- course 3 of standards as der the same certificates, “as he specifically ther provides; of Information Freedom it advisable.” This section was may think 5 and 7 of exemptions or materials Revised of 1878. codified in the Statutes Act, 5 U.S.C. of Information Freedom R.S. § cover, the dis- 552(b)(5), 552(b)(7) (1976), §§ substantially impair present gives version closure of which could President 54(d) accounting the same choice in 31 U.S.C. governmental operations. all ex- he re- 1980). All information penditures purposes (Supp. “for the of IV intercourse level of confi- treaty subject nations to the same ... as he ceives is agen- may originating think it in the dentiality advisable.” 31 as it had U.S.C. 1979, $2,350,000 appropriated 54(e). was Id. cy. “to 716, 697, Minnesota, 51 S.Ct. Near v. U.S. question No one would but [when Halperin 625, 631, (1931). government might prevent 75 L.Ed. nation is at awar] State, 699, Department of 565 F.2d recruiting actual obstruction to its service or application possible (D.C.Cir.1977) (suggesting publication sailing the dates of trans- “extraordinary” ports prior to troops. standard or the of restraint number and location of litigation). by FOIA raised circumstances The congressional concern in the Act was 4. On the record before we us cannot to of secrecy maintain the these records and tell or guess even the true nature of the making materials while at same time the material the plaintiff effect, seeks or the if agencies for their accountable secret any, disclosure would upon have expenditures. S.Rep.No. foreign relations of the United States. I 3-8, reprinted 2d Sess. in 1980 U.S.Code fully agree therefore with the court’s action Cong. & Congress Ad.News 734-39. in giving government and the district secret; intended the certificates to remain court the opportunity on remand invoke it limited distribution even to As the itself. exemptions consider other in the Free- said, district it court does not make sense of dom Information asAct for main- basis release, under the Freedom of Information taining the confidentiality of this material. Act, Congress materials that itself does not If all or of some this has material been Washington see. State, Post Co. v. Department classified, exemption might it. cover F.Supp. (D.D.C.1980). government might be able to invoke privilege covering secrets, state see United hand, notes, 2. On the other as the court States v. Reynolds, 345 U.S. 73 S.Ct. Act, Freedom Information 5 U.S.C. (1953), did, L.Ed. 727 if it exemption (1976 1980), & IV Supp. imposes might apply. Other exemptions also broad requirements subject of disclosure Furthermore, might available. carefully detailed and exemp delineated be a situation where not all but recognized tions. The courts have that the might protected the material against exemptions nine Freedom Infor disclosure. These are issues the district mation Act exceptions are the exclusive court consider on the remand. I un- general E.g., rule of disclosure. De derstand the opinion court’s giving partment Rose, of Air Force 425 U.S. district court broad discretion handling 1592, 1599, 96 S.Ct. 48 L.Ed.2d 11 Finally, matter. under our decision (1976); Justice, Jordan v. Department Congress opportunity will have the to take 144, 147, 192 U.S.App.D.C. legislative action maintain the confiden- has State relied tiality Emergency Fund it if deems solely on exemption 3. It claims that 22 that course appropriate. 2671(a) 107 to gether justify nondisclosure of material re The steps that the court has taken to lating to Emergency Fund. provide opportunity further to protect the Emergency Fund against material disclo- convincingly The court shows that ex- sure seem to me to be as far as it properly emption 3 cannot be used protect confi- may go. how, however, I do not see con- dentiality of this material. In that exemp- sistent the Freedom of Information Congress tion imposed exacting require- Act, the court on the present record could governing confidentiality ments the kind of hold that exemption 3 covers this material statutes that would justify nondisclosure. or there is some other basis for demonstrates, As the although court tecting against it disclosure. upon two statutes which the State congressional ment relies reflect intent ON DENIAL OF REHEARING maintain confidentiality Emergency EN BANC Fund, they not do meet the strict standards ROBINSON, Before Judge, Chief Congress exemption imposed WRIGHT, TAMM, MacKINNON, WIL- 3. The statutes I have referred to in KEY, EDWARDS, WALD, MIKVA, GINS- part 1 in my leave no doubt mind that if BURG, SCALIA, Judges. BORK Circuit Congress ever had considered whether to permit disclosure under Freedom of In- ORDER formation relating material PER CURIAM. Fund, Emergency it permit- would not have ted such disclosure. In the Freedom of suggestion Appellees’ rehearing en Act, however, Information did banc has been circulated the full Court. question. address I agree with the majority A of the Court has not voted in court that there no basis which we suggestion. favor On consideration ignore can distort seriously language foregoing, it is and standards of 3 to reach a en the Court banc ORDERED result that we think would have denied. suggestion aforesaid problem. favored if had considered

707 legisla- future pre-emption” of prospective the of rehearing A statement on denial IRS, (7th King v. SCALIA, tion. banc, Judge en in filed Circuit IRS, Corp. v. Cir.1982), quoting from Zale which and Judges MacKINNON Circuit F.Supp. 486, (D.D.C.1979). Such an concur, attached. BORK is lays to construction approach legislative and unwary, for the the Judge: traps SCALIA, Circuit among well Executive branch as as the en be reheard case should We believe impedes develop- general public, and the effect of banc, merely because not body a of law in this field. ment of coherent congression a overturn is to decision panel con practice of tradition ally approved application We believe that of Ex- matters that foreign affairs fidentiality 3 to emption confidential can- It is old. conceiva is two centuries almost properly not on the basis of be assessed its surprising that produced ble that alone, legislative and without history re- inadvertently, intentionally or result, either gard to subsequent related enactments. of to the Freedom Amendments in the 1976 opinion panel barely mentions 94- Pub.L. No. (FOIA), Information statute; concurring opinion the 1980 Rather, 90 Stat. acknowledges that its coexistence with the arriving at is that our concern source of disposition sense,” panel’s “does not make em panel decision result the surprising that supra p. apparently regards but that as interpretation statutory process a braced separate apart an issue from the proper enacted legislation makes nonsense that interpretation Exemption our Thus, we find Amendments. after the 1976 view, the was a factor later enactment that statute, the books a on now have that we demanded attention —not as an isolated de most places which enacted in phenomenon incompatibility with whose Comp by the upon access tailed limitations interpretation Exemption court’s 3 could of the Execu General, employees troller at, marvelled essential be but as an element Members of Con even branch, and tive interpretive itself. The process themselves, category material gress not, sure, legislation to be specifically does decision) any panel (according public, deal with disclosure to the but its obtain will.* at public member of the assumptions regard implications 1980). IV 67(f) (Supp. 31 U.S.C. § clearer. disclosure could And in another respect specifically it is more contrary result is to the perverse Such a than present question directed to a prescription, common-sense elevated legislative history, since it addresses construction, statutory rule of that “[sta- disclosure of confidential materia, although apparent pari tutes in govern- particular, rather than disclosure conflict, reasonably possible so far as are general. ment information in oth- harmony to be in each construed Sutherland, Statutory Construction Exemption er.” 2A 3 would language of cer- 1973) 51.02 at 290. The (C. Sands 4th ed. that tainly interpretation bear may reasonably to FOIA opinion 1976 Amendments As the urged. panel Government rule inapplica- indicates, rendered that be said to have dispute comes down wheth- previously emergencies ble as enacted statutes er insofar the criterion “unforeseen concerned, purpose the avowed arising are since consular diplomatic and ser- was to vice,” (1976), eliminate some particular those Amendments is pre- “particular which earlier statutes secrecy enough as a qualify cri- (Part I), H.R.Rep. served. No. 94th for withholding” within the mean- terion] ing (1976); No. Cong., 1441, H.R.Rep. 2d hardly thing Sess. 3. We that (1976) (Confer- language Sess. of the 1976 statute Cong. Report), legislative ence & Admin. such a clear history provide U.S.Code an- quite It is another p. News swer to that question abstruse however, matter, legislation accommodated, to elevate FOIA to what later cannot disapprovingly other courts have called “a interpretation as traditional canons of material, panel’s 552(b)(1), may *The apply assurance is fied “not to be items, particular implying understood as there no but can conceivably exemption conceivably encompass category that could cover the entire mate- material,” disputed slip op. scrupulously rial that the a hol- 1980 statute so with- one, except apply government low insofar as it is meant holds from all officials designated range question. full of material here in Other few. exemptions, for classi- would demand. That is the course we National Citizens Committee for Broad- follow, would it making unnecessary re- casting, al., et Intervenors. hope mand the case in the the district 80-2556, 80-2566, Nos. court might devise toway undo the and 81-1084. produced. harm We United thought have States worthwhile to ex- Appeals, press these views spe- because the District of Columbia Circuit. cific result in the present case Argued May interest, harmful to the national but be- cause theory of “prospective pre-emp- Decided Aug. panel tion” which represents decision sure application to confuse the of future laws unnecessarily and to swell the list of filings. CORPORATION, MEDIA NEW SOUTH

Appellant,

v. COMMUNICATIONS

FEDERAL

COMMISSION, for Broad- Committee Citizens

National General, al., casting, et RKO

Inc., Intervenors. BROADCASTING,

FUTURE

INC., Appellant,

v.

FEDERAL COMMUNICATIONS

COMMISSION,

National Citizens Committee for Broad-

casting, al., General, et RKO

Inc., Intervenors. BROADCASTING,

GOLD COAST

INC., Appellant,

FEDERAL COMMUNICATIONS

COMMISSION,

National Citizens Committee Broad-

casting, al., General, et RKO

Inc., Intervenors. Forrest, C., Washington, Herbert E. D. CORPORATION, NEW SOUTH MEDIA Thompson, with whom Robert Lewis Steven Petitioner, Reed, Davidson, C., Washington, Jeanne D. joint appellants, were on brief for Gold FEDERAL COMMUNICATIONS Broadcasting, Coast Inc. and Future Broad- COMMISSION United casting in Nos. 80-2566 and 80-2567. Lew- America, States of Cohen, C., I. D. Washington, also entered

Case Details

Case Name: The Washington Post Company v. United States Department of State

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 28, 1982

Citation: 685 F.2d 698

Docket Number: 80-2469

Court Abbreviation: D.C. Cir.