The D.C. Circuit Narrows the Freedom of Information Act: Montrose Chemical v. Train

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 decision-making 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 inter-agency and intra-agency memoranda and letters which would not be available to parties other than an agency in litigation with the agency need not be disclosed.

Two leading cases, one in the Supreme Court and the other in the D.C. Circuit Court of Appeals, have established the guidelines for determining whether a document is within Exemption 5. In Soucie v. David,³ holding that the government must allow in camera inspection of a report analyzing the supersonic transport program for a determination of whether public access to the document was required, Judge Bazelon warned that the exemption should not be allowed to swallow up the rule. "The courts must beware of the inevitable temptation of a governmental litigant to give this exemption an expansive interpretation in relation to the particular record at issue."

In EPA v. Mink⁴ the Supreme Court ruled that Exemption 5 was intended by Congress to protect deliberative and policy-making processes so that government officials would not be forced to operate "in a fishbowl." The Court held that the FOIA only made "factual" materials available to the public; "deliberative" memoranda and documents were protected under Exemption 5. The exemption was held to permit withholding of documents in which factual and deliberative materials were "inextricably intertwined." Where deliberative matter could be deleted, however, the document was to be made available.

Montrose arose from the long administrative and court battle over DDT.⁵ In 1971 and 1972, the Environmental Protection Agency held hearings pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act to determine whether continued use of the chemical should be permitted. The Hearing Examiner's initial decision, supporting continued use of DDT, was reviewed personally by EPA Administrator William Ruckelshaus, in view of the importance of the issue involved, rather than by the Agency's Judicial Officer, as is normally the case. Ruckehshaus, the Judicial Officer, and two EPA attorneys heard oral argument and on June 14, 1972, issued a detailed 50-page opinion reversing the Hearing Examiner and cancelling all remaining registrations of DDT.

Attorneys for Montrose Chemical went into federal district court seeking a copy of a summary of the 9,200-page hearing record, prepared by Ruckelshaus' three colleagues for his use in making the final decision on the chemical. In an affidavit, Ruckelshaus stated that the summary was intended simply to help him analyze the voluminous record, and contained references only to material already available to the public.

Montrose argued that a summary of factual material remains factual for purposes of the FOIA. EPA contended that the summaries were part of the deliberative process and were protected. After an in camera inspection of the document, the district court ruled in favor of the manufacturer, although it directed that handwritten notes in the margins and certain sections in which the evidence was evaluated should be deleted. Both parties appealed this decision.

The court of appeals confronted a case of first impression. This was not an instance in which a decision was based on an intra-agency memorandum not on the public record, nor one in which such a memorandum was the only source where certain crucial facts could be found. In both those situations, the FOIA would require disclosure of the document. Here, the question presented was whether the selection and summarization of evidence constituted a part of the deliberative process. All three judges agreed that it did.

[4 ELR 10051]

Judge Wilkey likened the Administrator's request for a summary of the proceedings to "the way a judge uses a law clerk to sift through the report of a special master or other lengthy materials in the record." To probe the summaries, therefore, is to learn what implicit advice the Administrator received as to the relative importance of the facts to be weighed.

While there is undeniable logic to the court's view that to select among facts necessitates an exercise of judgment, the case raises some troubling questions. Especially in environmental cases, involving complicated testimony from expert witnesses in a variety of disciplines, the record from an administrative hearing is likely to be long technical, and contradictory. When a losing party must decide whether to litigate whether the administrative decision was "arbitrary and capricious" or "not supported by evidence on the record as a whole," it may be essential to know on what portions of the record the judgment was in fact based. What today may seem a reasonable exception for the benefit of an administrator's good faith effort to examine an enormous record may in the future be a device for agencies again to cloak their decisional processes in secrecy. While environmentalists are understandably pleased to see DDT banned (although since this decision, EPA has approved its use for controlling tussock moths in the Pacific Northwest) this result need not and should not be achieved at the expense of the FOIA, an essential tool of public interest litigants.

1. 4 ELR 20160.

2. 5 U.S.C. § 552 (b) (5).

3. 1 ELR 20147 (D.C. Cir. Apr. 13, 1971).

4. 3 ELR 20057 (U.S. Jan. 22, 1973).

5. Comment, Toward a Noisier Spring: D.C. Circuit Upholds Cancellation of DDT Registrations, 4 ELR 10013 (Jan. 1974).