# EPA v. Mink/Concurrence-dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stewart
* Concurrence/Dissent Brennan
* Dissenting Opinion Douglas
[p95] MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in part and dissenting in part.
The Court holds today that the Freedom of Information Act, 5 U.S.C. § 552, authorizes the District [p96] Court to make an in camera inspection of documents claimed to be exempt from public disclosure under Exemption 5 of the Act. In addition, the Court concludes that, as an exception to this rule, the Government may, in at least some instances, attempt to avoid in camera inspection through use of detailed affidavits or oral testimony. I concur in those aspects of the Court's opinion. In my view, however, those procedures should also govern matters for which Exemption 1 is claimed, and I therefore dissent from the Court's holding to the contrary. I find nothing whatever on the face of the statute or in its legislative history that distinguishes the two Exemptions in this respect, and the Court suggests none. Rather, I agree with my Brother DOUGLAS that the mandate of § 552 (a)(3)—"the court shall determine the matter de novo and the burden is on the agency to sustain its action"—is the procedure that Congress prescribed for both Exemptions.
The Court holds that Exemption 1 immunizes from judicial scrutiny any document classified pursuant to Executive Order 10501, 3 CFR 28 (Jan. 1, 1970). In reaching this result, however, the Court adopts a construction of Exemption 1 that is flatly inconsistent with the legislative history and, indeed, the unambiguous language of the Act itself. In plain words, Exemption 1 exempts from disclosure only material "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." (Emphasis [p97] added.) Executive Order 10501, however, which was promulgated 13 years before the passage of the Act, does not require that any specific documents be classified. Rather, the Executive Order simply delegates the right to classify to agency heads, who are empowered to classify information as Confidential, Secret, or Top Secret. Thus, the classification decision is left to the sole discretion of these agency heads. Moreover, in exercising this discretion, agency heads are not required to examine each document separately to determine the need for secrecy but, instead, may adopt blanket classifications, without regard to the content of any particular document. Thus, as §§ 3 (b) and 3 (c) of the Order make clear, matters for which there is no need for secrecy "in the interest of the national defense or foreign policy" may be indiscriminately classified in conjunction with those matters for which there is a genuine need for secrecy:
   3 (b) "Physically Connected Documents. The classification of a file or group of physically connected documents shall be at least as high as that of the most highly classified document therein. Documents separated from the file or group shall be handled in accordance with their individual defense classification."
   3 (c) "Multiple Classification. A document, product, or substance shall bear a classification at least as high as that of its highest classified component. The document, product, or substance shall bear only one over-all classification, notwithstanding that pages, paragraphs, sections, or components thereof bear different classifications."
Even the petitioners concede, no doubt in response to the "specifically required" standard of § 552 (b)(1) [p98] and the "specifically stated" requirement of § 552 (c), that documents classified pursuant to § 3 (b) of Executive Order 10501 cannot qualify under Exemption 1. Indeed, petitioners apparently accept the conclusion of the Court of Appeals that as to § 3 (b):
   "This court sees no basis for withholding on security grounds a document that, although separately unclassified, is regarded secret merely because it has been incorporated into a secret file. To the extent that our position in this respect is inconsistent with the above-quoted paragraph of Section 3 of Executive Order 10501, we deem it required by the terms and purpose of the [Freedom of Information Act], enacted subsequently to the Executive order." 150 U.S. App. D.C., at 236, 464 F.2d, at 745.
Nevertheless, petitioners maintain that information classified pursuant to § 3 (c) of the Order is exempt from disclosure under Exemption 1. The Court of Appeals rejected that contention, and in my view, correctly. The Court of Appeals stated:
   "The same reasoning applies to this provision as to the one dealing with physically-connected documents. Secrecy by association is not favored. If the non-secret components are separable from the secret remainder and may be read separately without distortion of meaning, they too should be disclosed." 150 U.S. App. D.C., at 237, 464 F.2d, at 746.
Petitioners' argument, adopted by the Court, is that this construction of the Act imputes to Congress an intent to authorize judges independently to review the Executive's decision to classify documents in the interest of the national defense or foreign policy. That argument simply misconceives the holding of the Court of Appeals. Information classified pursuant to § 3 (c), it must be emphasized, may receive the stamp of secrecy, not because such secrecy is necessary to promote "the national defense or foreign policy," but simply because it constitutes a part of such other information which genuinely merits secrecy. Thus, to rectify this situation, the Court of Appeals ordered only that the District Court in camera determine "[i]f the non-secret components are separable from the secret remainder and may be read separately without distortion of meaning...." The determination whether any components are in fact "non-secret" is left exclusively to the agency head representing the Executive Branch. The District Court is not authorized to declassify or to release information that the Executive, in its sound discretion, determines must be classified to "be kept secret in the interest of the national defense or [p100] foreign policy." The District Court's authority stops with the inquiry whether there are components of the documents that would not have been independently classified as secret. If the District Court finds, on in camera inspection, that there are such components, and that they can be read separately without distortion of meaning, the District Court may order their release. The District Court's authority to make that determination is unambiguously stated in § 552 (a)(3): "the [district] court shall determine the matter de novo and the burden is on the agency to sustain its action." The Court's contrary holding is in flat defiance of that congressional mandate.
Indeed, only the Court of Appeals' construction is consistent with the congressional plan in enacting the Freedom of Information Act. We have the word of both Houses of Congress that the de novo proceeding requirement was enacted expressly "in order that the ultimate decision as to the propriety of the agency's action is made by the court and prevent it from becoming meaningless judicial sanctioning of agency discretion." S. Rep. No. 813, 89th Cong., 1st Sess., 8 (1965) (hereinafter cited as S. Rep. No. 813); H.R. Rep No. 1497, 89th Cong., 2d Sess., 9 (1966) (hereinafter cited as H.R. Rep. No. 1497). What was granted, and purposely so, was a broad grant [p101] to the District Court of "authority whenever it considers such action equitable and appropriate to enjoin the agency from withholding its records and to order the production of agency records improperly withheld." H.R. Rep. No. 1497, p. 9. And to underscore its meaning, Congress rejected the traditional rule of deference to administrative determinations by "[p]lacing the burden of proof upon the agency" to justify the withholding. S. Rep. No. 913, p. 8; H.R. Rep. No. 1497, p. 9. The Court's rejection of the Court of Appeals' construction is inexplicable in the face of this overwhelming evidence of the congressional design.
The Court's reliance on isolated references to Executive Order 10501 in the congressional proceedings is erroneous and misleading. The Court points to a single passing reference to the Order in the House Report, which even a superficial reading reveals to be merely suggestive of the kinds of information that the Executive Branch might classify. Nothing whatever in the Report even remotely implies that the Order was to be recognized as immunizing from public disclosure the entire file of documents merely because one or even a single paragraph of one has been stamped secret. The Court also calls to its support some comments out of context of Congressmen Moss and Gallagher on the House floor. But on their face, these comments do no more than confirm that Exemption 1 was written with awareness of the existence of Executive Order 10501. Certainly, whatever significance may be attached to debating points in construing a statute, these comments hardly support the Court's conclusion that a classification pursuant to Executive Order 10501, without more, immunizes an entire document from disclosure under Exemption 1.
[p102] Executive Order 10501 was promulgated more than a decade before the Freedom of Information Act was debated in Congress. Yet, no reference to the Order can be found in either the language of the Act or the Senate Report. Under these circumstances, it would seem odd, to say the least, to attribute to Congress an intent to incorporate "without reference" Executive Order 10501 into Exemption 1. Indeed, petitioners' concession that "physically connected documents," classified under § 3 (b) of the Order, are not immune from judicial inspection serves only to reinforce the conclusion that the mere fact of classification under § 3 (c) cannot immunize the identical documents from judicial scrutiny.
The Court's rejection of the Court of Appeals' construction of Exemption 1 is particularly insupportable in light of the cogent confirmation of its soundness supplied by the Executive Branch itself. In direct response to the Act, Order 10501 has been revoked and replaced by Order 11652, which expressly requires classification of documents in the manner the Court of Appeals required the District Court to attempt in camera. The Order, which was issued on March 8, 1972, and became effective on June 1, 1972, 37 Fed. Reg. 5209 (Mar. 10, 1972), explicitly attributes its form to the Executive's desire to accommodate its procedures to the objectives of the Freedom of Information Act:
   "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."
Moreover, in his statement accompanying the promulgation of the new Order, the President stated: "The Executive order I have signed today is based upon... [p103] a reexamination of the rationale underlying the Freedom of Information Act." 8 Presidential Documents 542 (Mar. 13, 1972).
The new Order recites that "some official information and material... bears directly on the effectiveness of our national defense and the conduct of our foreign relations" and that "[t]his official information or material, referred to as classified information or material in this order, is expressly exempted from public disclosure by Section 552 (b)(1) of [the Freedom of Information Act]." (Emphasis added.) Thus, the Executive clearly recognized that Exemption 1 applies only to matter specifically classified "in the interest of the national defense or foreign policy." And in an effort to comply with the Act's mandate that genuinely secret matters be carefully separated from the nonsecret components, § 4 (A) of the new Order provides:
   "Documents in General. 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."
The President emphasized this requirement in his statement:
   "A major source of unnecessary classification under the old Executive order was the practical impossibility of discerning which portions of a classified document actually required classification. Incorporation of any material from a classified paper into another document usually resulted in the classification of the new document, and innocuous portions of neither paper could be released." 8 Presidential Documents 544 (Mar. 13, 1972) (emphasis added).
It is of course true, as the Court observes, that the Order "provides that the separating be done by the [p104] Executive, not the Judiciary...." Ante, at 85 n. 10. But that fact lends no support to a construction of Exemption 1 precluding judicial inspection to enforce the congressional purpose to effect release of nonsecret components separable from the secret remainder. Rather, the requirement of judicial inspection, made explicit in § 552 (a)(3), is the keystone of the congressional plan, expressly deemed "essential in order that the ultimate decision as to the propriety of the agency's action is made by the court [to] prevent it from becoming meaningless judicial sanctioning of agency discretion." S. Rep. No. 813, p. 8; H.R. Rep. No. 1497, p. 9. It could not be more clear, therefore, that Congress sought to make certain that the ordinary principle of judicial deference to agency discretion was discarded under this Act. The Executive was not to be allowed "to file an affidavit stating [the] conclusion [that documents are exempt] and by so doing foreclose any other determination of the fact." Cowles Communication v. Department of Justice, 325 F.Supp. 726, 727 (ND Cal. 1971). Accord, Frankel v. SEC, 336 F.Supp. 675, 677 n. 4 (SDNY 1971), rev'd on other grounds, 460 F.2d 813 (CA2 1972); Philadelphia Newspapers v. HUD, 343 F.Supp. 1176, 1180 (ED Pa. 1972).
[p105] The Court's interpretation of Exemption 1 as a complete bar to judicial inspection of matters claimed by the Executive to fall within it wholly frustrates the objective of the Freedom of Information Act. That interpretation makes a nullity of the Act's requirement of de novo judicial review. The judicial role becomes "meaningless judicial sanctioning of agency discretion," S. Rep. No. 813, p. 8; H.R. Rep. No. 1497, p. 9, the very result Congress sought to prevent by incorporating the de novo requirement.

## Notes

* ↑ Executive Order 10501 was revoked on March 8, 1972, and replaced with Executive Order 11652, 37 Fed. Reg. 5209, which became effective June 1, 1972.
* ↑ "The policy of the Act requires that the ...exemptions [be construed narrowly]." Soucie v. David, 145 U.S. App. D.C. 144, 157, 448 F.2d 1067, 1080 (1971). "A broad construction of the exemptions would be contrary to the express language of the Act." Wellford v. Hardin, 444 F.2d 21, 25 (CA4 1971).
* ↑ Petition for Cert. 9 n. 4.
* ↑ Section 552 (c) provides: "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." The accompanying Senate Report emphasizes that § 552 (c) places a heavy burden on the Government to justify nondisclosure: "The purpose of [§ 552 (c)] is to make it clear beyond doubt that all materials of the Government are to be made available to the public by publication or otherwise unless explicitly allowed to be kept secret by one of the exemptions in [§ 552 (b)]." S. Rep. No. 813, 89th Cong., 1st Sess., 10 (1965) (emphasis added). A commentator cogently argues that the "pull of the word 'specifically' [in § 552 (c)] is toward emphasis on [the] statutory language" of the nine stated exemptions. The "specifically stated" clause in § 552 (c), he notes, "is often relevant in determining the proper interpretation of particular exemptions." K. Davis, Administrative Law § 3A.15, p. 142 (Supp. 1970). See also Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761 (1967). For a detailed study of the Freedom of Information Act and its background, see Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame Law. 417 (1965).
* ↑ See Developments in the Law—The National Security Interest and Civil Liberties, 85 Harv. L. Rev. 1130, 1224-1225 (1972).
* ↑ "[G]iven the requirement that a file or document is generally classified at the highest level of classification of any information enclosed, it will often be the case that a classified file will contain information that could be released separately to the public. Because it is not 'specifically required by Executive order to be kept secret,' such information is not privileged under the Information Act. To ensure that an overall classification is not being used to protect unprivileged papers, a reviewing court should inspect the documents sought by a litigant." Developments in the Law, supra, n. 5, at 1223.
* ↑ See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395, 397 (1951) (Jackson. J., concurring) (Frankfurter, J., dissenting).
* ↑ In support of their claim that Executive Order 10501 automatically and without judicial review activates the exemption of § 552 (b) (1), petitioners rely upon Epstein v. Resor, 421 F.2d 930 (CA9 1970). Rather, Epstein confirms the Court of Appeals' interpretation of the Act. The Epstein court refused a request to review in camera documents classified pursuant to Executive Order 10501, but only because the Government, at the plaintiff's request, had begun a current review of the documents on "a paper-by-paper basis." Moreover, in response to the argument that petitioners advance here—namely, that the mere classification of a document precludes judicial review—Epstein states: "[I]n view of the legislative purpose to make it easier for private citizens to secure Government information, it seems most unlikely that [the Act] was intended to foreclose an (a)(3) judicial review of the circumstances of exemption. Rather it would seem that [subsection] (b) was intended to specify the basis for withholding under (a)(3) and that judicial review de novo with the burden of proof on the agency should be had as to whether the conditions of exemption in truth exist." 421 F.2d, at 932-933.