Freedom of Information Act exemptions tightly construed in case concerning the Garwin Report on the SST: Soucie v. David

On April 13, 1971 the Circuit Court of Appeals for the District of Columbia held that the district court had improperly exempted the Office of Science and Technology (OST) from compliance with the Freedom of Information Act, 5 U.S.C. § 552. Soucie v. David, 1 ELR 41001-02. The lower court had sustained OST's refusal to furnish plaintiff with a copy of the Garwin Report, a scientific study commissioned by the President on the proposed supersonic transport plane (SST), holding that the OST is not an "agency" for purposes of the Freedom of Information Act, but is instead a part of the Executive Office of the President, and that the Garwin Report was protected from compulsory disclosure by the doctrine of executive privilege.

In reversing and remanding, the court of appeals held that the OST was in fact an agency for purposes of the Act and that the Garwin Report was an agency record. On remand, the court of appeals instructed the district court to consider whether the report was protected in whole or in part by the specific exemptions set forth in the Act. Of particular interest in the decision was the expansive interpretation given by the court to the disclosure provisions of the Freedom of Information Act and the narrow construction placed upon the nine exemptions listed in § 552(b). 1 ELR 41001. Soundly conceived and articulately worded, the court's instructions to the district court upon remand should help clarify some areas of confusion surrounding the Act, while providing a firm philosophical context for the resolution of others. Individuals and groups seeking environmental information from the various administrative agencies are certain to find the decision helpful when they encounter what an earlier court referred to as "the inevitable temptation of a government litigant to give [the exemption provisions of the Act] an expansive interpretation in relation to the particular records at issues." Ackerly v. Ley, 420 F.2d 1336, 1341 (D.D.C.1969).

In holding OST subject to the disclosure provisions of the act the court filled out the skeletal, almost tautological definition of "agency" found in the Administrative Procedure Act.¹ "The statutory definition of 'agency' is not entirely clear, but the APA apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions." 1 ELR 20147, 20148-49. Applying this standard to OST, the court cncluded:

The OST, created in 1962 by an executive reorganization plan, is authorized (1) to evaluate the scienftific research programs of the various federal agencies, (2) to advise and assist the President in achieving coordinated federal policies in science and technology. … If the OST's sole function were to advise and assist the President, that might be taken as an indication that the OST is part of the President's staff and not a separate agency. In addition to that function, however, the OST inherited from the National Science Foundation the function of evaluating federal programs. When Congress initially imposed that duty on the Foundation, it was delegating some of its own broad power of inquiry in order to improve the information on federal scientific programs available to the legislature. … By virtue of its independent function of evaluating federal programs, the OST must be regarded as an agency subject to the APA and Freedom of Information Act. 1 ELR 20149-50.

Having thus defined OST the court next had little difficulty in determining that the Garwin Report, which evaluates the federal SST program, must be regarded as a record of the agency subject to disclosure unless explicitly exempted by the Act.

These threshold determinations were all that were necessary for remand, but the court wentfurther, examining three potentially applicable exemptions — § 552(b)(5), which exempts certain intra-agency memoranda or letters; § 555(b)(4) which exempts trade secrets and personal, confidential commercial or financial information; and § 552(b)(1) which exempts foreign policy and security matters required by Executive Order to be kept secret. While final adjudication as to whether the Garwin Report was covered by one or more of these exemptions was not possible because the matter was not considered below, still, in at least two of the areas — intra-agency correspondence and national defense — the court set rather explicit policy guidelines.

With respect to agency memoranda or letters the court said:

That exemption was intended to encourage the free exchange of ideas during the process of deliberation and [1 ELR 10110] policy-making;² accordingly, it has been held to protect internal communication consisting of advice, recommendations, opinions, and other material reflecting deliberative or policy-making processes, but not purely factual or investigatory reports. Factual information may be protected only if it is inextricably intertwined with policy-making processes (footnotes omitted). 1 ELR 20151.

On the record to date, the court found "no evidence that releasing the factual information in the Garwin Report will expose the decisional processes of the President or other executive officers with policy-making functions," and cautioned that unless such evidence is produced upon remand, "the factual information in the report will not be protected by the exemption for internal communications." 1 ELR 20151.

Maintaining the exemption on a narrow basis appears to accord with the congressional mandate to the courts to afford no greater scope to the exemption than could previously be obtained by a party in litigation with an agency. Internal agency communications had in fact been exempt from discovery by private parties prior to passage of the Act and are expressly exempted from such discovery during litigation by the Federal Rules of Civil Procedure. See United States v. Morgan, 313 U.S 409 (1941). Also, Fed.R.Civ.P. 34(a), 26(b). Such exempted materials have variously been described as the "internal working papers" or the "consultative functions of government." Compare, Walled Lake Door Co. v. United States, 31 F.R.D. 258 (E.D.Mich. 1962); Kaiser Aluminum & Chemical Corp. v. United States, 157 F. Supp. 939 (Ct.Cl. 1958). Cases under the 1966 Act have held that the exemption that attaches to these internal communications ceases when the reason for its existence is no longer operative. It has also been held that in applying that exemption, a distinction has to be drawn between documents "which are part of the administrative reasoning process" and documents "which are factual in substance." Consumers Union v. Veterans Administration, 301 F. Supp. 796, 806 (S.D.N.Y. 1969). Further, an administrative agency cannot support an admittedly public action on the announced basis of a private internal memorandum while maintaining the privileged nature of the material. Thus where the identity of all members and the nature of some of the proceedings of a grand jury became known, it was held that the grand jury minutes themselves must be made available. United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940). And where the Maritime Administration Subsidy Board ordered a steamship line to refund past subsidy payments, publishing only the last five pages of its memorandum, the court held the steamship company entitled to examine the entire document. American Mail Line Limited v. Gulick, 411 F.2d 646 (D.C. Cir. 1969).³

With respect to the national defense or foreign policy exemption of § 552(b)(5) the court left no doubt that on remand the district court was to use its own judgment rather than that of the OST, if the § 552(b)(1) exemption was raised.

The court can most effectively undertake the statutory de novo evaluation of the Government's claim by examining the Report in camera. … Even if the Government asserts that public disclosure would be harmful to the national defense or foreign policy, in camera inspection may be necessary. In such a case, however, the court need not inspect the Report if the Government descriibes its relevant features sufficiently to satisfy the court that the claim of privilege is justified. 1 ELR 20152.⁴

The court in remanding the case touched only briefly on what has developed into one of the more perplexing exemptions under the act, § 552(b)(4), which exempts from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." Designed, as the court notes, "to encourage individuals to present certain types of information to the government," the exemption has been treated by some courts as creating only two classes of exempted material (privileged or confidential trade secrets and commercial or financial information) and by at least one court as creating three (trade secrets, commercial or financial information, confidential or privileged information.) Compare Consumers Union of United States, Inc. v. Veterans Administration, supra, Barcelona Shoe Corporation v. Compton, 271 F. Supp. 591 (D.P.R. 1967). While the D.C. Circuit follows the two-category interpretation of the act, Grumann Aircraft Engineering Corp. v. Renegotiations Board, 425 F.2d 578 (D.C.Cir. 1970), the question of who determines whether information is confidential has yet to be judicially resolved. Whether it is the informant himself, the agency, or the court under a yet-to-be-devised objective standard cannot now be stated with finality. See Katz, "The Games [1 ELR 10111] Bureaucrats Play: Hide and Seek Under the Freedom of Information Act," supra, 1263-67 for an excellent treatment of this particular problem area.

While the court thus left a handful of specific interpretative matters to be resolved at the district court level, it could hardly have expressed its philosophical leanings toward broadly construed disclosure provisions and narrowly construed exemptions in stronger language.

The touchstone of any proceeding under the Act must be the clear legislative intent to assure public access to all governmental records whose disclosure would not significantly harm governmental interests. The policy of the Act requires that the disclosure requirement be construed broadly, the exemptions narrowly.

The public's need for information is especially great in the field of science and technology, for the growth of specialized scientific knowledge threatens to outstrip our collective ability to control its effects on our lives. The OST itself was created to help alleviate this problem; Congress intended that the OST would provide better information and coordination with respect to federal activities in the scientific field.It would defeat the purposes of the OST, as well as the purposes of the Act, to withhold from the public factual information on a federal scientific program whose future is the center of public debate. 1 ELR 20152-53.

1. § 551(1) of the APA defines agency as any "authority of the Government of the United States, whether or not it is within or subject to review by another agency." 1 ELR 40001.

2. A second expressed reason for the enactment of § 552(b)(5) was to prevent premature disclosure of agency records when such disclosure might impede the proper functioning of the administrative process. See S.Rep. No. 813, 89th Cong. 1st Sess. (1965) (reporting S.1160); H.R.Rep.No. 1497, 89th Cong.2d Sess. (1966) (reporting H.R. 5012). See also, Katz, "The Games Bureaucrats Play: Hide and Seek Under the Freedom of Information Act," 48 Tex.L.Rev. 1261 (1970). In any event, this second rationale behind the exemption would seem to have little pertinence to the instant case where the position of the President with respect to the SST was already widely publicized and the position of Congress also a matter of legislative record.

3. Neither Congress nor the courts have as yet had occasion to grapple with a situation brought to mind by recent litigation concerning publication of the "Pentagon Papers" and pertinent to both the internal communications and national defense exemptions under the Act. At what point, if any, can the mere passage of time render a particular exemption obsolete?

4. The matter of national defense, not suggested by OST at the district court level, seems unlikely to be relied upon by the government upon remand. A spokesman for Rep. Henry Reuss, D.-Wisc., who also requested and was denied by the OST a copy of the Garwin Report, told ELR that the issue of national defense or foreign policy was not involved in the OST refusal.