At a time in our history when governmental secrecy based on a claim of privilege has come under close scrutiny, it is surprising to find any court expanding, rather than narrowing, the government's power to withhold information from the public. It is still more surprising to find this power sustained in a case in which the information sought was already in large part in the hands of the public. By a curious turn of logic, however, when the government summarizes facts already in the public record for the purpose of making a decision, that summary can be kept secret, according to the U.S. Court of Appeals for the D.C. Circuit. While the result in the particular case is highly desirable from an environmental point of view—at issue was the EPA Administrator's cancellation of DDT registrations—the principle it enunciates is disturbing.

The decision came in Montrose Chemical Corp. v. Train,¹ decided January 21, 1974 as Judge Wilkey analyzed the scope of Exemption 5 of the Freedom of Information Act (FOIA).² Exemption 5 attempts to reconcile the necessity for free and open discussion in agency decisionmaking with the Act's general purpose of curbing arbitrary governmental action by ensuring public access to the facts on which decisions are made. It states that interagency and intraagency memoranda and letters that would not be available to parties other than an agency in litigation with the agency need not be disclosed.