Garwin Report release moots Soucie v. David

On April 13, 1971 the Circuit Court of Appeals for the District of Columbia held that the district court below had improperly exempted the Office of Science and Technology (OST) from compliance with the Freedom of Information Act. Soucie v. David, 1 ELR 20147. The lower court had sustained OST's refusal to furnish the plaintiff, the Executive Director of Friends of the Earth, with a copy of the Garwin Report, a scientific study commissioned by the President on the proposed supersonic transport plane (SST). The district court held that the OST is not an "agency" for purposes of the Freedom of Information Act; that instead it is a part of the Executive Office of the President; and that for this reason 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. See the extended discussion of Soucie v. David in Summary and Comments at 1 ELR 10109.

In a letter dated August 17, 1971 to plaintiff's attorney, Dr. David gives his reasons for releasing the Garwin Report. His letter follows:

Dear Mr. Koff:

Enclosed for transmitted to your clients, Messrs. Gary A. Soucie and W. Lloyd Tupling, is a copy of the "Final Report of the Ad Hoc Supersonic Transport Review Committee". In the suit Soucie v. David, which names myself and the office of Science and Technology as defendants, you have sought to obtain the release of this report under the provisions of the Freedom of Information Act. Our compliance with your request will moot any further litigation. Accordingly, a motion to dismiss is being filed by the government in the District Court.

Our action in this regard has been prompted by continued public interest and certain impressions which have arisen depicting the government as attempting to conceal hitherto undisclosed factual data on the SST program. To dispel any further misconceptions that might result from continued litigation, we are releasing the report at this time.

In connection with its release, I would like to place the report in proper perspective so that there can be no misunderstanding about its role in the formulation of the Administration's position on the SST program. The report was one part of a full consideration of the program in early 1969. Other reviews recommended continuation of the program in contrast to one recommendation of this report. After studying all the factors involved, on September 23, 1969, President Nixon formally announced a go-ahead on the program.

The views expressed in the report were, of course, those of the committee members, presented to aid in the decision-making process. In releasing the report, we do not imply that those views are supported by the Administration.

Sincerely,

Dr. Edward E. David, Jr., Science Adviser to the President

Soucie v. David is now moot; Judge Pratt in the district court granted defendant's motion to dismiss on August 30, 1971. However, the holding and several useful dicta in the decision of the Court of Appeals for the District of Columbia Circuit remain. Foremost among these is the court's finding that because OST is required by statute to evaluate federal programs independently of its Presidential advisory function. It is subject to the Administrative Procedures Act and the Freedom of Information Act. Thus, for instance, reports prepared by or submitted to the Council on Environmental Quality or other executive offices may be made public under Soucie v. David. The court's dicta on the narrow exemptions to the Act's governing policy of giving the public easy access to information gathered by the federal government are of equal importance to the growing number of environmental lawsuits which challenge federal action. To mount an effective challenge to the soundness of a federal decision, internal agency studies must be closely studied by environmental groups. The court construed the Act to mean that such studies must be made available if they are agency memoranda or letters of an essentially factual rather than policy-making nature. See 1 ELR 10109-10. Thus, arguably, the factual agency studies which are used to prepare agencies' 102(2)(C) environmental impact statements under the National Environmental Policy Act must be made available to citizens' groups for further technical analysis and scrutiny. In fact, the Council on Environmental Quality has said that under Soucie v. David:

Factual information is exempted "only if it is inextricably intertwined with policy-making processes." [1 ELR 20151] Read thus, the Act should open to the public factual studies and analyses of environmental issues used by Federal agencies in preparing environmental impact statements, as well as the statements themselves. 1 ELR 50060.

Without trying to second-guess a federal agency before it has in fact acted, a similar problem with the applicability of the Act to factual studies could conceivably present itself in the near future as the work groups of the Interior Department's Federal Task Force on the proposed Four Corners power development complete their separate investigations. See 1 ELR Dig. [183-5], especially Supplement Five, 1 ELR 67555. If the view set out in this Comment is correct, however, these studies will be immediately available for public information and scrutiny.

Several objections may be made by Interior. First, it [1 ELR 10139] may view the working group papers as policy documents which will underpin policy decisions later to be made by the entire Task Force and which are therefore protected from public access under the Act. Soucie v. David makes clear that the Act offers no loopholes for studies of an essentially factual nature.Second, and more cogently, Interior may argue that the studies are incomplete until he Department is prepared to release them, or until they are all combined into the final report of the Task Force. But this objection loses its force where deadlines for the submissions of the work group reports have passed, because, having been submitted, they are completed studies on the question at issue and can be identified with particularity, as required by the Act.