# EPA v. Mink
## Concurring Opinion

    Stewart

## Concurrence/Dissent

    Brennan

## Dissenting Opinion

    Douglas
Supreme Court of the United States
410 U.S. 73
Environmental Protection Agency et al. v. Mink et al.
Certiorari to the United States Court of Appeals for the District of Columbia Circuit
No. 71-909. Argued: November 9, 1972 --- Decided: January 22, 1973
Respondent Members of Congress brought suit under the Freedom of Information Act of 1966 to compel disclosure of nine documents that various officials had prepared for the President concerning a scheduled underground nuclear test. All but three were classified as Top Secret or Secret under E.O. 10501, and petitioners represented that all were inter-agency or intra-agency documents used in the Executive Branch's decisionmaking processes. The District Court granted petitioners' motion for summary judgment on the grounds that each of the documents was exempt from compelled disclosure by 5 U.S.C. § 552 (b)(1) (hereafter Exemption 1), excluding matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," and § 552 (b)(5) (hereafter Exemption 5), excluding "inter-agency or intra-agency memorandums or letters which would not be available by law to a party... in litigation with the agency." The Court of Appeals reversed, concluding (a) that Exemption 1 permits nondisclosure of only the secret portions of classified documents but requires disclosure of the nonsecret components if separable, and (b) that Exemption 5 shields only governmental "decisional processes" and not factual information unless "inextricably intertwined with policy-making processes." The District Court was ordered to examine the documents in camera to determine both aspects of separability.
Held:
    1. Exemption 1 does not permit compelled disclosure of the six classified documents or in camera inspection to sift out "non-secret components," and petitioners met their burden of demonstrating that the documents were entitled to protection under that exemption. Pp. 79-84.
    2. Exemption 5 does not require that otherwise confidential documents be made available for a district court's in camera inspection regardless of how little, if any, purely factual material they contain. In implying that such inspection be automatic, the Court of Appeals order was overly rigid; and petitioners should be afforded the opportunity of demonstrating by means short of in camera inspection that the documents sought are clearly beyond the range of material that would be available to a private party in litigation with a Government agency. Pp. 85-94.
150 U.S. App. D.C. 233, 464 F.2d 742, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and POWELL, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 94. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 95. DOUGLAS, J., filed a dissenting opinion, post, p. 105. REHNQUIST, J., took no part in the consideration or decision of the case.
Assistant Attorney General Cramton argued the cause for petitioners. With him on the briefs were Solicitor General Griswold, Acting Assistant Attorney General Wood, Harry R. Sachse, Walter H. Fleischer, and William Kanter.
Ramsey Clark argued the cause and filed a brief for respondents.

## Notes

* ↑ Briefs of amici curiae urging affirmance were filed by Norman Dorsen, Melvin L. Wulf, and Sanford Jay Rosen for the American Civil Liberties Union, and by Marvin M. Karpatkin and Michael N. Pollet for the Consumers Union of United States, Inc.