# EPA v. Mink/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stewart
* Concurrence/Dissent Brennan
* Dissenting Opinion Douglas
[p105] MR. JUSTICE DOUGLAS, dissenting.
The starting point of a decision usually indicates the result. My starting point is what I believe to be the philosophy of Congress expressed in the Freedom of Information Act, 5 U.S.C. § 552.
Henry Steele Commager, our noted historian, recently wrote:
   "The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to. Now almost everything that the Pentagon and the CIA do is shrouded in secrecy. Not only are the American people not permitted to know what they are up to but even the Congress and, one suspects, the President [witness the 'unauthorized' bombing of the North last fall and winter] are kept in darkness." The New York Review of Books, Oct. 5, 1972, p. 7.
[p106] Two days after we granted certiorari in the case on March 6, 1972, the President revoked the old Executive Order 10501 and substituted a new one, Executive Order 11652, dated March 8, 1972, and effective June 1, 1972. The new Order states in this first paragraph that: "The interests of the United States and its citizens are best served by making information regarding the affairs of Government readily available to the public. This concept of an informed citizenry is reflected in the Freedom of Information Act and in the current public information policies of the Executive branch."
While "classified information or material" as used in the Order is exempted from public disclosure, § 4 of the Order states that each classified document shall "to the extent practicable, be so marked as to indicate which portions are classified, at what level, and which portions are not classified in order to facilitate excerpting and other use." § 4 (A). And it goes on to say: "Material containing references to classified materials, which references do not reveal classified information, shall not be classified." Ibid.
The Freedom of Information Act does not clash with the Executive Order. Indeed, the new Executive Order precisely meshes with the Act and with the construction given it by the Court of Appeals. Section 552 (a)(3) of the Act gives the District Court "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Section 552 (a)(3) goes on to prescribe the procedure to be employed by the District Court. It says "the court shall determine the matter de novo and the burden is on the agency to sustain its action."
The Act and the Executive Order read together mean at the very minimum that the District Court has power [p107] to direct the agency in question to go through the suppressed document and make the portion-by-portion classification to facilitate the excerpting as required by the Executive Order. Section 552 (a)(3) means also that the District Court may in its discretion collaborate with the agency to make certain that the congressional policy of disclosure is effectuated.
The Court of Appeals, in an exceedingly responsible opinion, directed the District Court to proceed as follows:
Where material is separately unclassified but nonetheless under the umbrella of a "secret" file, the District Court should make sure that it is disclosed under the Act. This seems clear from § 552 (b) which states: "This section does not apply to matters that are—(1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." Unless the unclassified appendage to a "secret" file falls under some other exception in § 552 (b) it seems clear that it must be disclosed. The only other exception under which refuge is now sought is subsection (b)(5) which reads that the section does not apply to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."
This exemption was described in the House Report as covering "any internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency." H.R. Rep. No. 1497, 89th Cong., 2d Sess., 10. It is clear from the legislative history that while opinions and staff advice are exempt, factual matters are not. Ibid.; S. Rep. No. 813, 89th Cong., 1st Sess., 9. And the courts have uniformly agreed on that construction of the Act. See Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, Grumman Aircraft Eng. Corp. v. Renegotiation Bd., 138 U.S. [p108] App. D.C. 147, 425 F.2d 578; Long Island R. Co. v. United States, 318 F.Supp. 490; Consumers Union v. Veterans Admin., 301 F.Supp. 796.
Facts and opinions may, as the Court of Appeals noted, be "inextricably intertwined with policymaking processes" in some cases. In such an event, secrecy prevails. Yet, where facts and opinions can be separated, the Act allows the full light of publicity to be placed on the facts.
Section 552 (c) seems to seal the case against the Government when it says: "This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section." Disclosure, rather than secrecy, is the rule, save for the specific exceptions in subsection (b).
The Government seeks to escape from the Act by making the Government stamp of "Top Secret" or "Secret" a barrier to the performance of the District Court's functions under § 552 (a)(3) of the Act. The majority makes the stamp sacrosanct, thereby immunizing stamped documents from judicial scrutiny, whether or not factual information contained in the document is in fact colorably related to interests of the national defense or foreign policy. Yet, anyone who has ever been in the Executive Branch knows how convenient the "Top Secret" or "Secret" stamp is, how easy it is to use, and how it covers perhaps for decades the footprints of a nervous bureaucrat or a wary executive.
I repeat what I said in Gravel v. United States, 408 U.S. 606, 641-642 (dissenting opinion):
   "[A]s has been revealed by such exposés as the Pentagon Papers, the My Lai massacres, the Gulf of Tonkin 'incident,' and the Bay of Pigs invasion, the Government usually suppresses damaging news but highlights favorable news. In this filtering process the secrecy stamp is the officials' tool of suppression and it has been used to withhold information [p109] which in '99½%' of the cases would present no danger to national security. To refuse to publish 'classified' reports would at times relegate a publisher to distributing only the press releases of Government or remaining silent; if it is printed only the press releases or 'leaks' it would become an arm of officialdom, not its critic. Rather, in my view, when a publisher obtains a classified document he should be free to print it without fear of retribution, unless it contains material directly bearing on future, sensitive planning of the Government."
The Government is aghast at a federal judge's even looking at the secret files and views with disdain the prospect of responsible judicial action in the area. it suggests that judges have no business declassifying "secrets," that judges are not familiar with the stuff with which these "Top Secret" or "Secret" documents deal.
That is to misconceive and distort the judicial function under § 552 (a)(3) of the Act. The Court of Appeals never dreamed that the trial judge would declassify documents. His first task would be to determine whether nonsecret material was a mere appendage to a "Secret" or "Top Secret" file. His second task would be to determine whether under normal discovery procedures contained in Fed. Rule Civ. Proc. 26, factual material in these "Secret" or "Top Secret" materials is detached from the "Secret" and would, therefore, be available to litigants confronting the agency in ordinary lawsuits.
Unless the District Court can do those things, the much-advertised Freedom of Information Act is on its way to becoming a shambles. Unless federal courts can be [p110] trusted, the Executive will hold complete sway and by ipse dixit make even the time of day "Top Secret." Certainly, the decision today will upset the "workable formula," at the heart of the legislative scheme, "which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure." S. Rep. No. 813, p. 3. The Executive Branch now has carte blanche to insulate information from public scrutiny whether or not that information bears any discernible relation to the interests sought to be protected by subsection (b)(1) of the Act. We should remember the words of Madison:
   "A popular Government, without popular information, or the means of acquiring it, is but a Prologue [p111] to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
I would affirm the judgment below.

## Appendix to Opinion of Douglas, J., Dissenting

Sections 552 (b) and (c) of the Freedom of Information Act read as follows:
   (b) This section does not apply to matters that are—
       (1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy;
       (2) related solely to the internal personnel rules and practices of an agency;
       (3) specifically exempted from disclosure by statute;
       (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
       (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
       (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
       (7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency;
       (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
       (9) geological and geophysical information and data, including maps, concerning wells.
   (c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.

## Notes

* ↑ My Brother STEWART, with all deference, helps make a shambles of the Act by reading § 552 (b)(1) as swallowing all the other eight exceptions. While § 552 (b)(1) exempts matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," § 4 of Executive Order 11652, as I have noted, contemplates that not all portions of a document classified as "secret" are necessarily "secret," for the order contemplates "excerpting" of some material. Refereeing what may properly be excerpted is part of the judicial task. This is made obvious by § 552 (b)(5), which keeps secret "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." The bureaucrat who uses the "secret" stamp obviously does not have the final say as to what "memorandums or letters" would be available by law under Exemption 5, for § 552 (a)(3) gives the District Court authority, where agency records are alleged to be "improperly withheld," to "determine the matter de novo," the "burden" being on the agency "to sustain its action." Hence, § 552 (b)(5), behind which the executive agency seeks refuge here, establishes a policy which is served by the fact/opinion distinction long established in federal discovery. The question is whether a private party would routinely be entitled to disclosure through discovery of some or all of the material sought to be excerpted. When the Court answers that no such inquiry can be made under § 552 (b)(1), it makes a shambles of the disclosure mechanism which Congress tried to create. To make obvious the interplay of the nine exemptions listed in § 552 (b), as well as § 552 (c), I have attached them as an Appendix to this dissent.
* ↑ Letter to W.T. Barry, Aug. 4, 1822, 9 The Writings of James Madison 103 (Hunt ed. 1910).