Warren E. Burger: We’ll hear arguments next in 922, Chrysler Corporation against Brown. Mr. Braverman, I think you may proceed whenever you’re ready.
Burt Braverman: Mr. Chief Justice, may it please the Court. This is what is known as a reverse-Freedom of Information Act case, an action to enjoin certain government agencies from disclosing documents that are asserted to be confidential in nature. The action was brought against the respondent Defense Logistics Agency, Department of Labor, Department of Defense. The issues in this case concern the extent to which these agencies are prohibited by federal statutes and regulations from disclosing confidential business information and also the extent to which the petitioner Chrysler Corporation is entitled to a de novo trail. The case arose as follows; The respondent agencies notified Chrysler that two requests for disclosure of documents had been received and that those requests were made under Freedom of Information Act. They advised Chrysler that it could object to the disclosure of those documents if it chose. The documents in this case were of two types. The first called an affirmative action program or an AAP consisted of several hundred pages of extremely detailed employment data. The data in essence was blue print or a hand book of the organization and staffing of Chrysler’s assembly plants. The second kind of document involved was a government report, which was prepared concerning a review of those facilities and the compliance of those facilities with various regulations applicable to government contractors. Those government reports incorporated into them substantial portions of the data that was included in the affirmative action programs themselves. And I want to note at this point that the data included in Chrysler’s AAPs is viewed by Chrysler as confidential in nature. It is covered by various written confidentiality policies and practices of the corporation, and the corporation and its employees are expressly restricted from disclosing that data either to competitors or to the public. The respondents permitted written objections to be filed to disclosure. Chrysler objected on essentially two bases. First it asserted that the information was exempt from disclosure under Exemption 4 of the Freedom of Information Act. That exemption says that the disclosure mandate of the Freedom of Information Act shall not apply to information, which is confidential and commercial in nature or trade secret. And second it asserted that disclosure of these documents was prohibited by the federal Trade Secrets Act 18 U.S.C., Section 1905, which makes it a crime for any federal employee to disclose certain specified types of confidential, business statistical data, such as was contained in the AAPs. The respondents decided the issue against Chrysler and informed Chrysler that the documents would be disclosed. Although Chrysler was supposedly afforded a right to appeal administratively from that determination, it was not allowed to do so because the agency indicated that it would not await the results of that appeal prior to disclosing the documents. Consequently Chrysler having exhausted it's administrative remedies was compelled to institute an injunctive action in the District Court for Delaware. Following a de novo trail in which the District Court heard the testimony of expert witnesses and other witnesses concerning the nature of the information at issue and the consequences of disclosure of that information to the public, the District Court issued its decision in which it held that first the information was in fact exempt from disclosure under the Freedom of Information Act because it was confidential in nature and because its disclosure would cause substantial competitive injury to Chrysler. And second it held that disclosure of that information would violate the Trade Secrets Act as well as certain parallel provisions of the defendant’s regulations. Consequently it enjoined the disclosure of those portions of the documents, which it found to be exempt from disclosure.
William H. Rehnquist: When you say the Trade Secrets Act counselor, you mean 18 U.S.C. 1905?
Burt Braverman: Yes sir.
William H. Rehnquist: Isn’t one of the black letter principles of equity that court of equity will not enjoin a criminal act?
Burt Braverman: That is correct. However it would be an abuse of discretion of course if the agency were to exercise its discretion to disclose documents in violation of that law, and to prevent that abuse of discretion. In an anticipatory sense the District Court exercised its equitable jurisdiction to enjoin the disclosure.
William H. Rehnquist: Well you’re stating then it just didn’t bothered to follow what is on the black letter principle of equity?
Burt Braverman: I believe it did bother to follow. It realized that it could not await the disclosure of that information to then remedy the problem because once disclosed the confidential information could never be returned to its original state. And this Court has recognized in Cort v. Ash that there will be implied a cause of action under certain statutes where the remedy is necessary to effectuate the purpose of the statute and it has applied that principle in criminal cases. And consequently the District Court did in fact I think consider that equitable principle but realized that the information had to be enjoined prior to disclosure. Again we’re also proceeding under the Freedom of Information Act, which we asserted also provided a basis for the District Court to enjoin disclosure of the information. But the basic answer is that the court found that it would be an abuse of discretion and that the APA permitted it to enjoin the -- provide that injunctive remedy. Cross appeals were filed from the District Court’s decision, and the Court of Appeals reversed. The Court of Appeals held that the District Court had erroneously engaged in a de novo trail that Chrysler’s cause of action did not arise under either the FOIA or the Trade Secrets Act but rather only under the Administrative Procedure Act. And it also held that the federal agencies had discretion to disclose these documents even if they were exempt from disclosure under the Freedom of Information Act and even if they fell within the Trade Secrets Act if the agencies had some regulation which authorized that disclosure. The agency found however that – the Court of Appeals found however that the agency's record that it had compiled in the course of deciding these issues was so inadequate as to prevent further review and it remanded the case for further proceedings. This Court has recognized on a number of occasions that the Freedom of Information Act was brought into existence to remedy what had been perceived to be an era of secrecy on the part of government agencies. The object of Congress was that if it could open the processes of government to greater public scrutiny, those agencies and the government itself would become more accountable to the public. At the same time that it was attempting to end this era of secrecy however, it was aware that businesses such as Chrysler submit vast amounts of business information to federal agencies both voluntarily and in compliance with various regulatory requirements. Now some of that information Congress knew could be disclosed without harming the businesses that provided it. But it was also aware that significant amounts of that information were of a truly confidential nature and that if that information was disclosed that could impair the competitive or other health of the businesses. At the time that the Freedom of Information Act was coming into existence in its early stages 1963, when the Senate hearing were being conducted, there was no exemption in the act for confidential business information, and this omission gave rise to a great hue and cry over the need for such protection. Interestingly the greatest or perhaps the most vocal proponents of the need to protect business documents were the federal agencies themselves. They citied two principal reasons for the need for this protection. First and most obviously was the need to protect businesses, which were either pursuant to regulation or in a corporative effect furnishing confidential information to the agencies to protect these businesses from the harm, which could be caused by disclosure. And second they realized that this protection was the quit pro quo for the agencies’ ability to obtain this kind of information in the future. If the information were not to be respected in its confidentiality the business would no longer furnish that information. And in reaction to this outcry for the need for protection, Congress in fact added what is now the fourth exemption to the Freedom of Information Act. But Exemption 4 was considerably different than the other exemptions to the act. The other exemptions and for example Exemption 1 or 2 or 5 or 7 dealing with national security secrets, dealing with investigative files, dealing with intra-agency memoranda, these exemptions were designed to protect governmental interests. They were designed to give the agency the option, if it need to, to withhold certain documents from disclosure because governmental interest might truly be impaired. But as to this exemptions Congress still made them permissive only, when I say ‘permissive’ it gave the agencies discretion to withhold those documents if it needed to, but it made clear in the legislative history that those exemptions were not to be invoked unless it was truly necessary to protect the governmental interest.
William H. Rehnquist: Which legislative history are you talking about Senate or the House?
Burt Braverman: This comes through in fact in both the Senate and the House. It comes through in the sense that although there are statements made concerning the permissive nature of the exemptions the only time that they are made is with respect to those exemptions relating to governmental interests. In contrast, when the Congress remarked concerning Exemption 4, which was an exemption designed to protect private interest, its statements were in the sense of mandatory remarks that the exemption must be enforced and must be utilized to protect those private interests.
William H. Rehnquist: This is committee report?
Burt Braverman: These are in the committee reports. For example in House Report 1497, The House stated that Exemption 4 and I quote, “would assure the confidentially of confidential business information obtained by the government.” And during the Senate hearings this statement was made, “such protection must be afforded not only as a matter of fairness but -” again I quote, “but as a matter of right.” Congress --
William H. Rehnquist: I always had the feeling that one with a House Report was written by the proponents and the Senate report was written by the opponents or vice versa, I find those reports quite contradicting?
Burt Braverman: They obviously have their proponents and their opponents. The House Report in fact was somewhat more liberal in terms of the protection to be afforded. But what I’m trying to make clear is that both the House and Senate indicate that the need was there to protect confidential business information. In fact even Attorney General Ramsey Clark, after the act was enacted made the statement that confidential business information must be protected from disclosure and must remain outside the zone of accessibility.
Potter Stewart: Mr. Braverman I wonder if your argument really advances your cause because the statutory language is the same as in -- for in terms of whether it’s permissive or mandatory for all six exemption, through 7 exemptions rather. If we’re conceding in effect that 1, 2, 5 and 7 are permissive then the statute use the same language for 3, 4 and 6 may be you’re putting yourself in a hole.
Burt Braverman: No, I don’t believe so. The Act says that where information falls within an exemption, the Act shall not apply. That’s clear, that is statutory language. But as the Court Of Appeal has noted in the Westinghouse case, the legislative history reflected so clear, so clear a purpose to protect that information and to continue the practice that had previously existed in government of protecting confidential business information, that this legislative history, these remarks from which I have quoted expressed an affirmation, a mandate that this information be protected. It was not simply to be something that the government agencies have the discretion neither to adhere to or not to adhere to. Now in this case for example the government takes the position that even where information falls within the Fourth Exemption, even where that information is confidential, even where that information would cause substantial competitive injury of disclosed, the agency still has discretion to disclose that information. We think Congress intended otherwise and intended to provide protection to that information. Furthermore these statutes can be read in tandem with the Trade Secrets Act-
Potter Stewart: Exemption 4 was added later, how do you explain the failure to use different language?
Burt Braverman: Exemption 4 was added in response to the need to protect the information. If you read the legislative history, it shows that there was a concern for a need for protection. Congress added the exemption in response to that its intent, as viewed from the legislative history, was to provide that protection. We think that something more --
Potter Stewart: But it doesn’t really explain why they used statutory language, that had previously been made clear to have a permissive meaning, to accomplish the purpose you describe. It is just poor legislative --
Burt Braverman: I think it’s poor legislative drafting because I think that they meant something more than merely shall not apply, and what has to be done is to be read in the context of what proceeded this. Congress was attempting to reverse the practice of agency secrecy concerning agency document. It was not intending to reverse a practice of agency respect for the confidentiality of business documents. As I understand the legislative history, it was Congress’s purpose to allow the agencies to continue that practice and in fact it endorsed the practice of respecting confidentiality of the business documents, perhaps the drafting could have been clear. There are -- it is a, what we believe to be a mandate for confidentiality in the Freedom of Information Act. Yet in spite of that mandate the court below and the respondents to the regulations have turned the act around rather than providing protection for confidential business information through the Fourth Exemption, and rather than serving as a vehicle for the public to find out about the how the agency functions, the act today has become a principle method for finding out about private business activities, for finding out about your neighbor or your competitor, or just about anybody who files documents in the government. Now let me gave you some examples to illustrate my point. The act has become a very, very frequently used vehicle for industrial espionage. The Food and Drug Administration testified in congressional hearings recently that of the many thousands of FOIA requests, which it receives annually, 86% of those requests come from corporations or corporate representatives seeking to obtain private data that has been filed in either applications or similar reports with that agency. The reports of other agencies are the same.
Warren E. Burger: Was there anything in the legislative history discussing the organization of business groups, who simply sort information in the abstract then classified it and sold it too, was that developed in the legislative history?
Burt Braverman: I do not recall anything concerning that in the legislative?
Warren E. Burger: -- parts, I wondered whether it was in this history?
Burt Braverman: I do not recall that. There is however reference in the legislative history to the Congress practice of agencies such as the Bureau of the Census and the Bureau of Labor Statistics, which acquire information from the public and aggregate it in such way as to maintain its confidentiality because they recognized it should not be available. But there was nothing that I know in the legislative history on the other point.
Thurgood Marshall: But it’s true that Congress moved it, is piloting for the lack of another word, between business corporation was going on. This isn’t brand new.
Burt Braverman: In ‘67 they knew that this was a practice that was then conducted by sequestering an employee taking a photograph. They did not know -
Thurgood Marshall: Anyway possible.
Burt Braverman: Anyway, but they did not realize that the act –
Thurgood Marshall: They didn’t realize that this was going to be a new way?
Burt Braverman: They didn’t realize it because they intended that the fourth exemption would provide protection. They did -
Thurgood Marshall: I don't think it is a clear as you think it is. I think knowing that, it could have been much clearer?
Burt Braverman: Perhaps they should have more foresight, we wish they had. But they did not, and today the act is being used in that fashion indeed it is now possible through the FOIA to obtain business data, which could not be legitimately obtained under the federal and state Trade Secret laws, fair practice laws but to obtain that data simply by sending in FOIA request to your friendly government agency and saying, please give me this application form, please give me the formula described in this report and the data is available. We think this not only cuts against the careful fabric of Trade Secret laws that have been developed over the years but we also think it raises very serious questions about whether government agencies in disclosing private data under the Freedom of Information Act to private persons, whether those agencies are in fact impairing property rights in contravention of the Fifth Amendment.
William H. Rehnquist: You know Congress did provide some protection for the kind of thing you talk about. In our decision in the Robertson case for example, where disclosure is prohibited by some other law then the agency at the very least need not disclose it and probably cannot disclose it.
Burt Braverman: Absolutely that is in fact another issue in the case which I was not going to address today, but I will say that we do contend although the-
Potter Stewart: That’s Exemption 3 --
Burt Braverman: -the court did not agree, that’s right that Exemption 3 incorporates the Trade Secrets Act into the FOIA in such a way as to make the act not applicable to any information which falls within the Trade Secrets Act and that is an issue.
Potter Stewart: I’m sure that it’s your view that Exemption 3 is more than just permissive to, as you submit -
Burt Braverman: Exemption 3 is absolutely mandatory, yes. That is our contention.
Potter Stewart: And that neither under -- if material falls under either Exemption 3 or Exemption 4, the agency may not waive for Exemption?
Burt Braverman: That is correct. Another use in fact that has been made of the-
Potter Stewart: Although you can see, the agencies may waive the other or at least some of the other exemptions?
Burt Braverman: Exactly because those exemptions are designed to protect governmental interests.
Potter Stewart: Now is this because of the legislative history or because of the interest that are designed to protect or because of their language or what?
Burt Braverman: It is because of the interests that they are designed to protect, it is because of the history of Section 1905 the Trade Secrets Act there’s a quote as incorporated through Exemption 3. It is not only because of the, shall not apply language of the Freedom of Information Act.
John Paul Stevens: Mr. Braverman, I am puzzled by your reliance on 3, because the condition of coming within 3 is it some other statute mandate non-disclosure?
Burt Braverman: That’s right and in this --
John Paul Stevens: So then how can 3 be the source of the mandate for non-disclosure, you don’t even --
Burt Braverman: It’s a somewhat circular process. If the information is prohibited from being disclosed by 1905 and if as we assert 1905 is an Exemption 3 statute then the Freedom of Information Act does not apply to that data. It cannot authorize its disclosure because that data is specifically Exempted from disclosure by 1905. And so in that way the act is rendered inoperative and the information is protected by the Trade Secrets Act. Now this perversion of Exemption 4 has also been used now to circumvent the Federal Rules of Civil Procedure. A litigant who could and should seek to acquire information under the Federal Rules of Civil Procedure in a discovery context will make a Freedom of Information Act request for private documents and in that way will circumvent all of the protections and scrutiny that the court itself could provide with respect to that discovery request. In fact that is the case with the two requests in this case. The two litigants in cases involving Chrysler desired to obtain information for use in those cases against Chrysler but rather than proceeding in those actions where Chrysler could have objected on those basis of relevance, burdensomeness. It instead came through the Freedom of Information Act and attempted to get that information in circumvention of the Federal Rules. We think this Court has frowned upon this practice in both in Robins Tyre, in NLRB v. Sears Roebuck where it indicated in an agency context that the Act should not be used for this purpose. And we think that it equally a bar to use the act for this purpose against a private person, particularly where the Federal Rules of Civil Procedure do exist as a means of obtaining this data. Now I mentioned these examples really to show that the act no longer is being used to find out about government operations but instead is being used to find out about private activities. This unfortunately is not what the act was intended to accomplish. In allowing these practices it has the effect of undermining the Fourth Exemption, undermining the protection which that Exemption was intended to provide and of upsetting the balance that Congress was trying to fashion between the publics right to know on the one hand and the business communities right to be secure in its property and privacy. We think that the decision below by recognizing this broad agency discretion to disclose the very kinds of documents which Exemption 4 was intended to protect, disrupts the legislative scheme is contrary to the legislative history and we urge the court to reverse the decision below.
William H. Rehnquist: Before the enactment of FOIA Mr. Braverman, I take it if you had been defending Chrysler against a private litigant in the United States District Court that private litigant would have been free to go to the Department of Defense and say, “look we got a law suit, will you give us some papers that you’ve got here?” And the Department of Defense could have given it to them without the necessity of going through the compliance of the Federal Rules of Civil Procedure. The Department of Defense isn’t the defendant in the private act.
Burt Braverman: That’s not true, because at that point the Department of Defense would have been prohibited by the Trade Secrets Act from disclosing that to any person.
William H. Rehnquist: But if you are right, they still are.
Burt Braverman: If we are right and if the Trade Secrets Act—
William H. Rehnquist: And in each case the remedy would be a criminal prosecution.
Burt Braverman: Exactly.
Warren E. Burger: Mrs. Babcock?
Barbara B. Babcock: Mr. Chief Justice, and may it please the Court. I think at the offset we should put this case in context, this is not a strange new animal on the legal landscape. The issues here are old and familiar ones, whether an agency has abused its discretion or acted contrary to law in a decision that it made. Nothing and/or about the Freedom of Information Act changes the approach that this Court took a year before the Freedom of Information Act was passed and the Federal Communications Act, Federal Communications Commission versus Schreiber, 381 US 279. There the court, this Court upheld the discretion of the FCC to hold public hearings against the objections of a private corporation much the same as the objections that are being made here that public view of his records would cause competitive harm and would ruin the American economy. The authority of the FCC to hold these public hearings was found in their authorizing statute, which says that they could conduct proceedings in such a manner as were best conduced to the proper dispatch of business and to the ends of justice. And this Court found in that context that the decision of the FCC to hold public hearings to expose this information to the public was completely within its discretion. We have all in way followed --
Potter Stewart: Mrs. Babcock, isn’t it true that in -- we are not to confront the abuse of discretion issue here, are we? Isn’t that what’s left open on the remand by the Third Circuit?
Barbara B. Babcock: Yes it is, but I think that here this Court should take the approach - should mandate the approach in this kind of case, which we have all fallen into the habit of calling reverse Freedom of Information Act cases. They are not Freedom of Information Act cases. They are Administrative Procedure Act cases and the approach of the Court of Appeals here was exactly right. If the record --
Potter Stewart: Well, that’s the issue, isn’t?
Barbara B. Babcock: It is the issue and --
Potter Stewart: Since you’re making argument on merits because we don’t begin with that as a hypothesis agreed to by both sides.[Laughter].
Barbara B. Babcock: Oh no, it’s certainly not agreed to by both sides, but that is the point that I am making here, which is that these very kinds of issues which is the balancing of the public and - the public interest in knowing and the private interest in concealing- these have risen before to this Court in other context, and there is nothing about the Freedom of Information Act that changes that-
William H. Rehnquist: Of course in the Schreiber --
Warren E. Burger: Excuse me, go ahead.
William H. Rehnquist: In the Schreiber case it was an agency proceeding, the agency was really an interested party in conducting those hearings, was it not? And here it’s more less just a bystander saying, “Look through our files if you want to-
Barbara B. Babcock: Not at all Your Honor, I think that’s a very important point, the agency is not a disinterested bystander; we have to look at what the records that are complied here are. These are records, which are demanded from government contractors as a condition of getting a government contract. That people in Chrysler has 100s and millions of dollars worth of these government contracts and as a condition they must supply this information to the government in the form that the government requires it and the agency has an interest in continuing to get that kind of information from Chrysler that has an interest in protecting Chrysler if that information- the disclosure of that information will in the future make information less secure.
Warren E. Burger: Does the government need to disclose it to the world at large in order to a make use of it for governmental purposes?
Barbara B. Babcock: No it doesn’t need to disclose it to the world at large, except this particular kind of information which is Equal Employment Opportunity Information has been found under the Regulations of the Labor Department and the Office of Federal Contract Compliance to be useful for disclosure. The public has an interest in knowing how the government is doing in its enforcement of equal employment opportunity and so that this is peculiarly a kind of information in which there may be some public interest that an agency should evaluate.
William H. Rehnquist: Why does it have more of an interest in that area than in any number of other areas where the Department of Defense receives information?
Barbara B. Babcock: Why does the agency have more interest?
William H. Rehnquist: Well, why does the agency conclude that the public has more information in the equal employment operations of the Department of Defense say then in the procurement regulations or the personnel policies of the veterans’ preference or something else?
Barbara B. Babcock: It doesn’t conclude that it has more of an interest Mr. Justice Rehnquist but it does say that peculiarly there is a current interest in the enforcement of the executive order and that the -- but it is not -- but there may be a equal interest in procurement or any of those other matters. So that the whole basis of the Freedom of Information Act is that the public does have an interest in the whole range of governmental activities. But I think that the real point here is that these are not -- the clear bright line cannot be drawn between what are public and private records. These records here being created for the government at the command of the government in return for government contract, and needed by the government for the enforcement of a program that is a subject of an executive order and that is one of the major government programs, how can you call these private records? And if they are --
John Paul Stevens: I don’t see how any of that has any relevance if the information is in fact trade secret and confidential.
Barbara B. Babcock: Yes they are.
John Paul Stevens: The fact it has been asked for, does not make any difference than census information or anything else, doesn’t it?
Barbara B. Babcock: Well Mr. Justice Stevens that’s what I was just going to reach. If there is incorporated into this record created for the government, if there is incorporated necessarily real trade secrets or confidential commercial information then there is the possibility of the submitter challenging both at the agency level, the release of that information and then under the Administrative Procedure Act in accord that the agency has gone beyond its authority as acted contrary to law has misapplied its regulations and that’s plenty of protection, that’s sufficient protection.
John Paul Stevens: Well, I suppose it depends on which point of view you look at it from but do we not start with the assumption that some of this information is confidential or trade secret information within the meaning of Exemption 4?
Barbara B. Babcock: Well, we can’t start -- we can’t really start with that. That is going to be one of the subjects of the remand in this case. That --
John Paul Stevens: The District Court so found in this case?
Barbara B. Babcock: The District Court so found, yes. But the Court Of Appeals said that the record was not sufficient to determine whether the agency had decided that Exemption 4 applied or whether it didn’t apply and so that is an issue for another day. Now for the purposes --
John Paul Stevens: Well, but doing nothing because— to be sure I have your position well in mind, you do take the position, the United States takes a position and even if Exemption 4 applies and even if the information is a trade secret, a bonafide genuine trade secret, they may nevertheless in their discretion decide to disclose it.
Barbara B. Babcock: Yes sir, under certain regulations though and that is if the disclosure is in the public interest and if the disclosure would not harm the agencies’ ability to gather information or to do its job in the future so that they aren’t --
John Paul Stevens: Even though it would harm the proponent of the information?
Barbara B. Babcock: Even though it is confidential commercial information, it is -- what we are talking about here under these regulations is a balancing, and the balancing has to be the harm to the submitter of the information and the benefit to the public, and the need for the public in the interest of the Freedom of Information Act.
Lewis F. Powell, Jr.: Did the Court of Appeals find that there was no substantial evidence to support the findings made by the District Court? The District Court found that the information was confidential; it also founded a fact the release of it would be adverse to the interest of Chrysler. Now were those findings found to be without substantial support by the Court of Appeals?
Barbara B. Babcock: No, Mr. Justice Powell in essence the Third Circuit just kind of leaped over the District Court opinion. The District Court opinion was very, very narrow here and dealt only -- Chrysler was challenging the release of all of the information.
Lewis F. Powell, Jr.: But for purposes of deciding this case, do you think we must accept those findings by the District Court?
Barbara B. Babcock: No, Your Honor, I don’t because what I would ask --
Lewis F. Powell, Jr.: What do we do with them?
Barbara B. Babcock: What you do with them is affirm the judgment of the Third Circuit.
Lewis F. Powell, Jr.: I understand.
Barbara B. Babcock: -- which sort of skipped over the findings of the District Court [Laughter] and said that the case should go back to the agency for a further record and mandated the creation of the kind of record which would allow a District Court to review these kinds of cases under the Administrative Procedure Act.
Lewis F. Powell, Jr.: May I ask you this? Let’s assume for the moment that the case does go back and these findings are reaffirmed say by the agency. I understand you’re your argument that the agency in its balancing discretion nevertheless may release them, right?
Barbara B. Babcock: That’s correct Your Honor.
Lewis F. Powell, Jr.: Yes, well next question is this. Would it be possible for the agency under the regulations that now exist or under new regulations the right to say all of them, companies in the automobile industry and say, I know you all want those information on your competitors rather than put us to the trouble of arranging for you to have them copied here, from thereon send carbon copies of everything you send us, in this case to Ford, General Motors, and American Motors. Would that be appropriate?
Barbara B. Babcock: No that would not be appropriate because the agency has a function here and the agency -- and we really, I don’t think can down play this. The agency has an interest in continuing to get information and the agency has an interest in not upsetting its contractors and it --
Lewis F. Powell, Jr.: Because the records show --
Barbara B. Babcock: It has an interest in doing an appropriate balance and it has the expertise.
Lewis F. Powell, Jr.: Does the record in this case show what interest an agency has in making this information available to competitors of Chrysler?
Barbara B. Babcock: No it does not and I think it should be made very clear that the requestors in this case are not competitors of Chrysler and in fact in the vast majority --
Lewis F. Powell, Jr.: They could be. Couldn’t they? Any of them of the public.
Barbara B. Babcock: Any of them -- there is no distinction made among the requestors but if we look at the real world and what’s really happening in the so called reverse Freedom of Information Act cases, the requestors are not the competitors. The requestors are members of the public, newspaper people, public interest groups, potential plaintiffs and actual plaintiffs in discrimination suits that’s who the requestors have been in these cases.
Lewis F. Powell, Jr.: Would the information be denied if one showed up and said, I represent General Motors and I would like to have this information?
Barbara B. Babcock: That’s -- no it wouldn’t except that in the balancing that the agency does and in the administrative record that the agency would make though the-- it would certainly I think be taken into account when you weigh the interest of Chrysler in withholding the information who the requestor was.
John Paul Stevens: But if -- General Motors was denied, they just asked their friendly newspaper to go get it for them.
Barbara B. Babcock: That’s certainly true and that’s why the act -- I mean that’s one of the problems of the Freedom of Information Act that there is no way to distinguish among requestors but I --
Warren E. Burger: This includes a group of people who might organize a corporation as industrial intelligence incorporated gather the information, classify it and then sell it to the people who are interested.
Barbara B. Babcock: That is happening and that is certainly a distressing aspect of the Freedom of Information Act but that is not -- it doesn’t have anything to do with this case and I think --
Potter Stewart: What should we do if we disagree with you or with the agency that if this is within Exemption 4 namely really a trade secret that the agency may not release it. What do we do in this case? We just took -- we certainly don’t affirm, do we?
Barbara B. Babcock: Your Honor, you don’t have a record here, which would allow you to find that this is information that-
Potter Stewart: I didn’t ask that. I just asked what are we -- someone gave you a hypothetical and said that if there were really trade secrets involved here, could the agency still release this by exercising its balance? You said yes. And what if we disagree with you there? If there are trade secrets involved here, the agency may not release them, then what do we do?
Barbara B. Babcock: What you would have to do --
Potter Stewart: Are there any circumstances they may not release them?
Barbara B. Babcock: What you would have to do as a legal matter Your Honor is to find that Exemption 4 is mandatory. Now you can’t find that I think in the face --
Potter Stewart: Well suppose we do, what do we need to --?
Barbara B. Babcock: If you do, I would submit you’ve made an incorrect legal procedure.
Potter Stewart: I understand that. I understand that but that may happen time and again here and -- but nevertheless would you lose your case?
Barbara B. Babcock: If you find that Exemption 4 is mandatory, we certainly lose our case.
Potter Stewart: And what if we or what if we found that 1905 prevented the agency from-- even if exemption 4 was permissive, Exemption 3 invokes 1905 and that the agency may not release the materials under 1905.
Barbara B. Babcock: Well 1905 -- you don’t -- if you find that 1905 applies here and that these materials should have been withheld under 1905, then you don’t need to reach the point of whether it is an Exemption 3, whether 1905 is an Exemption 3 statute.
William H. Rehnquist: If 1905 -- if agency is held a hearing and decided that the material should be released, 1905 by definition does not apply. Isn’t that right?
Barbara B. Babcock: If the agency has held a hearing and decided that the material should be released --
William H. Rehnquist: When 1905 by definition does not prohibit its release since it’s been -- if is an agency regulation will bring it within the as-authorized by law clause of 1905.
Barbara B. Babcock: Absolutely and --
William J. Brennan, Jr.: If -- but that’s a big “if”, and you didn’t --
Lewis F. Powell, Jr.: Rather large “if.”
Barbara B. Babcock: Well the “if” being if the agency has held a hearing Your Honor or --?
Potter Stewart: If an agency regulation is a law?
Barbara B. Babcock: If the agency --
Potter Stewart: Within the meaning of 1905.
Barbara B. Babcock: Exactly and that is one of the issues in this case, and yet I would draw your attention to this Court’s opinion in Player versus Osterlind (ph) in which there was a subpoena from the board of tax appeals to the commissioner of Internal Revenue for the tax returns of twelve corporations. And this case was under the predecessors statute to 1905, one of the predecessors of statutes. And there this Court held that 1905 was raised as a defense the commissioner said, I can’t give up these records because I would be in violation of the statute. And there the court -- this Court said that 1905 cannot be deemed to forbid disclosures made in obedience to process lawfully issued, now that was a subpoena, that was not a statute, that was also not at a regulation, I would be the first to admit, but it was not a statute. So they’re certainly authorized by law within the meaning of 1905 goes beyond the strict requirements of a statute, and I would also call to the court’s attention that a statute that tracks 1905 exactly has been put into the IRS code of 1954, and this is 26 US Code 7213 and that is just like 1905 in terms of being a criminal statute and in the Laflin case the DC cited in our brief at page 43, the DC -- Third Circuit specifically that regulations permitting release of this kind of information covered by 1905 for use of grand juries was authorized by law. So that there are -- and there are other citations in our brief and then there is a general and legal principle that --
Byron R. White: But the regulation have to be adopted after notice and chance for comment or wouldn’t just an ordinary house keeping regulation be sufficient?
Barbara B. Babcock: The regulations must be valid Your Honor and so --
Byron R. White: They must be valid, but must they be the kind that are adopted after a notice and after public notice?
Barbara B. Babcock: I think it would depend on the circumstances of the case. We would certainly urge that these regulations were valid. This pattern of regulations are valid, now that would be one of the issues to be raised by submitters in their challenge to, under the APA, which is the design that were arguing here.
Warren E. Burger: Is it open to a district judge confronted with this problem to hold that the discretion under Exemption 4 has been abused in granting disclosures? It’s a permissive--
Barbara B. Babcock: Yes I think that -- Yes under the --
Warren E. Burger: Can a district judge say, well yes they had discretion but here on the record made before me, the discretion has been abused. And therefore I deny disclosure.
Barbara B. Babcock: That -- under the standard of review that we’re arguing, under the Administrative Procedure Act, it would be open to the District Court to say that the agency committed a clear error of judgment. And it would also go to whether the agency acted within the scope of its authority, Mr. Justice White’s concern with whether the-- whether the regulations that it was acting under were properly promulgated, were proper regulations whether the agency followed its own regulations, all of those things would be open to review under the administrative procedure act in the scheme that the Third Circuit devised and that we are urging here. I want to return just for a minute to the point that Exemption 4 cannot be correctly read as being mandatory. Mr. Braverman says that perhaps in trying to make it to mandatory, Congress could have been a little clear or that they couldn’t have been any clear, they included it within the other nine exemptions and they started out the heading to the nine exemptions with that this act compelling disclosure does not apply to the nine exemptions, so that the exemptions themselves neither direct disclosure nor direct withholding. The exemptions are set out in the statutory pattern and it really could not be more plain that they are a guide to the agency in deciding whether to disclose or whether to withhold. In the starkest terms Exemption 4 can’t be mandatory because Congress if it had made Exemption 4 and there is no distinction between exemption 4 and any other exemption, other exemptions cover private information also. They would have if they had made these exemptions mandatory created a withholding statute that went far beyond what the law was before the Freedom of Information Act. And literally I mean Congress cannot be that stupid when they were trying to make a Freedom of Information Act that they created a withholding statute is not possible, and that would have to be the result of finding Exemption 4 to be mandatory.
Potter Stewart: Well then your argument would -- that view of the statute would lead to the conclusion that with respect to material covered by the exemptions, one just disregards the Freedom of Information Act, correct?
Barbara B. Babcock: That’s correct Your Honor.
Potter Stewart: With respect to that -- anything covered by the nine exemptions, one just pretends the Freedom of Information Act had never been enacted and that’s a result of your argument?
Barbara B. Babcock: In a sense, I mean the analysis would be that, does the information fall within an exemption.
Potter Stewart: If so forget the Freedom of Information Act, isn’t that right? Doesn’t that follow?
Barbara B. Babcock: That’s correct Your Honor and if it does, the act does not apply and then the agency may decide --
Potter Stewart: Well, subject to 1905 and may be other laws?
Barbara B. Babcock: Subject to non-disclosure statutes, subject to the public interest and disclosures and the agencies often decide to withhold on the basis of one of the exemptions.
Potter Stewart: Yeah, but the agency may or may not have discretion but whether or not it does is to be determined by laws other than the Freedom of Information Act?
Barbara B. Babcock: That’s exactly right Your Honor.
Potter Stewart: That’s what follows your argument, isn’t it?
Barbara B. Babcock: That is my argument.
William H. Rehnquist: But General Babcock, I thought you had said perhaps I misunderstood you that in their hearing that the agency would conduct that the Exemption 4 would have to be taken into consideration in deciding whether or not to release.
Barbara B. Babcock: It would be taken -- in practical terms it would be taken into account in the balancing that is --
William H. Rehnquist: But how is that consistent with your answer to Mr. Justice Stewart’s question?
Barbara B. Babcock: It is that -- as a matter of statutory construction, once it is decided that material falls within the act, then the act does not -- it falls within one of the exemptions, then the act does not apply. However when the agency then goes on to say, should we release this material? We don’t -- it falls within one of the exemptions, so it is not mandatorily released, but we’re are going to go on and we are going to decide whether or not the public interest requires it, whether there are other interests, whether they’re non-disclosure statutes. One of the things that the agency might well take into account are the same concerns that caused Congress to pass Exemption 4. It wouldn’t actually be applying Exemption 4 but it would be --
Thurgood Marshall: I don't understand this. If you can -- if you fall in the Exemption 4 then the agency can’t release it, isn’t that true?
Barbara B. Babcock: No Mr. Justice Marshall that is not true.
Thurgood Marshall: On what authority would the agency release it?
Barbara B. Babcock: The agency -- if it falls within Exemption 4 then the act does not apply. The act does not require the agency to release the information.
Thurgood Marshall: On what authority does the agency have to release my private property?
Barbara B. Babcock: The agency may release your property if it is in the public interest to do so.
Potter Stewart: Well, the agency first of all your answer must be the agency has whatever power it may have or had or may have not had without any consideration under Freedom of Information Act?
Barbara B. Babcock: Exactly Your Honor.
Potter Stewart: And your claim is that power includes agency discretion and that’s the question?
Barbara B. Babcock: Of course it does and it has since 1789 when --
Potter Stewart: Of course, that’s your contention?
Barbara B. Babcock: Yes and I continue to make it.
Thurgood Marshall: 1789 they didn’t release it.
Barbara B. Babcock: They didn’t and certainly I’m not saying -- this is a tool of analysis in terms of reading the statute. I’m not saying that the Freedom of Information Act is not implicated in any analysis here, but it is -- certainly the Exemption 4 is not mandatory and once it’s decided that material falls within Exemption 4 the agency may withhold them and fight the requester or they may move on and decide whether within their regulations, within the statute, within the public interest, it is wise.
William J. Brennan, Jr.: Whereas when the act does apply, it must be released?
Barbara B. Babcock: That’s exactly right, that is the point.
William H. Rehnquist: Could a District Court reverse the agency under the APA Abuse of Discretion standard when the agency had decided to release the information if the District Courts felt that it should have applied Exemption 4 and not released it?
Barbara B. Babcock: If the agency had so far misread and the remand in this case seems to take that into account, if the agency had so far misread Exemption 4 that it was a clear error in judgment, so as to be an abuse of discretion or to be contrary to law then the District Court could. The short answer Mr. Justice Rehnquist is yes.
Warren E. Burger: Is there a large amount of information Mrs. Babcock that government has in its files which is supplied voluntarily by many different industries in the country?
Barbara B. Babcock: It depends on what you mean by voluntary Mr. Chief Justice, I mean --
Warren E. Burger: Well, if they are not required to furnish it, they furnish it or do not furnish it, of their own choice.
Barbara B. Babcock: They furnish it because of their interest in getting government contracts and getting the government on their side, persuading the government to do what they wanted to do.
Warren E. Burger: Well the Forest Service for example, asks for and receives a lot of information which the suppliers need not to give to them if they don’t want to. Now, take that as in one category and there are many others. The environmental people are very much interested in that the environmental people within the government not outside the government. Now that information which has been voluntarily furnished to the government for its overall purposes is available -- is subject to the Freedom of Information Act, is it not?
Barbara B. Babcock: It could be. I don’t see offhand why it would fall under any of the exemptions, but it might.
Warren E. Burger: On its face it’s subject to the Act whether it falls under an --
Barbara B. Babcock: Certainly.
Warren E. Burger: -- exemption is a second inquiry. Now then is there some -- is a court -- would the District Judge again be entitled take into account or must the agency itself take into account whether that source of information would dry up if the government disclosed it?
Barbara B. Babcock: Certainly and it actually in these regulations that we’re concerned with in this case that is one of the considerations that the agency applies.
William J. Brennan, Jr.: It doesn’t have that discretion if the Act is applicable?
Barbara B. Babcock: Oh if the Act is applicable-
William J. Brennan, Jr.: They must release --
Barbara B. Babcock: If the Act is applicable, it must release, but if it falls with an exemption and not as assuming, yes.
Warren E. Burger: Then if their discretion comes into play that is a factor to weigh, is it?
Barbara B. Babcock: Yes, and it’s a factor that it’s built into the regulations in this case.
Lewis F. Powell, Jr.: Madam Attorney General, who in fact made the decision in this case that this material should be released in the public interest?
Barbara B. Babcock: The record in the - some functionaries in the Office of Federal Contract Compliance made the decision. The record in this case is not -- the administrative record is no -- there’s nothing wonderful for either side in this case, so --
Lewis F. Powell, Jr.: Right, but what troubles me is normally if someone’s rights are affected even in the bureaucracy you can identity who has made a decision and can perhaps have a chance talk to him or her?
Barbara B. Babcock: And that’s exactly what the effect of this opinion would be that the remand in this case, and if this Court would mandate this as a proper procedure, is for the agency to make a proper record on whether the materials falls into Exemption 4 and then why they have found it is in the public interest for it to be a released?
Lewis F. Powell, Jr.: A decision was made initially without any record I take it, that’s why the case is here.
Barbara B. Babcock: The decision -- the record is inadequate.
Lewis F. Powell, Jr.: In a written guidelines or standards as to what elements ought to be considered in making a judgment as to what is or is not in the public interest?
Barbara B. Babcock: There are not any in the actual regulations that we have it at issue here. But it will certainly be possible to develop on these kinds of cases, and I think that would be the result of the regular review under of the Administrative Procedure Act of an adequate agency record in these kinds of cases.
Lewis F. Powell, Jr.: Absence of something like that, the discretion would be virtually limitless, wouldn’t it?
Barbara B. Babcock: If it were virtually limitless that would be subject to attack I think under the APA as being beyond the agency's discretion that it shouldn’t be virtually limitless there are regulations. Let me just --
John Paul Stevens: What is the provision for a delay in the release of the information during the administrative procedure? Here as I remember they give a five-day notice and there is an objection, they are going to release it anyway. So they had to go into Federal Court. How is that problem handled now or could be handled now?
Barbara B. Babcock: The problem can be handled in a number of ways. There is a ten day period and then there are four unusual circumstances which could well be the objection by a submitter. There can be another ten day period for exceptional circumstances.
John Paul Stevens: It can’t be, but must there be? There can be, nut must there be?
Barbara B. Babcock: I think they would probably --
John Paul Stevens: Is it still possible the agency can say, well we did objections but we’re going to go ahead and release it, we’ll have our hearings later?
Barbara B. Babcock: If the procedure set out here for review for submitters under the APA were followed then the agency would have every interest in getting the submitter’s view and having an adequate record.
John Paul Stevens: They have got the view, and the view is, “Please don’t release it.” Can they still release it?
Barbara B. Babcock: They can still release it certainly, but the submitter can go to court --
John Paul Stevens: In another words if you have the same thing given all over again under the APA procedure that we had in this case, but just with a little better record, is that --
Barbara B. Babcock: But that’s a big difference. I mean that’s a very, very substantial --
John Paul Stevens: What if they say it will take 15 days to have the hearing or something like that? They were going to release it in the meantime.
Barbara B. Babcock: No, they wouldn’t release it in the meantime because the submitter is going to go to court and get as they have in all of these cases and get a preliminary injunction against their releasing it. So there hasn’t been any case.
John Paul Stevens: What I’m trying to find out is there a duty under the administrative procedure to withhold release until there has been a reasoned decision by the agency?
Barbara B. Babcock: There isn’t any duty, but it has never happened that the agency has done that. They have --
John Paul Stevens: It happened in this case. It happened in this very case.
Barbara B. Babcock: It hasn’t. The agency has not released the information itself.
John Paul Stevens: But they said they were going to within five days?
Barbara B. Babcock: But they didn’t do it.
John Paul Stevens: They only didn’t do it because they went to court and now the Third Circuit said we have no business in court. Your remedy is before the APA and as I understand your answers before the APA you cannot prevent disclosure. You’ve said two things; one under the Third Circuit you cannot go to court; your only remedy is before the APA. The second thing you’ve said is if you go before the APA there are no way you can stop a release in five days.
Barbara B. Babcock: I understand Mr. Justice Stevens where the -– where our problem is, or my problem which is I don’t mean before the APA. I mean, under the APA in the District Court. The APA, the Administrative Procedure Act should provide the standard of review in the District Court for the submitter’s cases. They should make their record with the agency, but before --
John Paul Stevens: My question is what guarantee do they have that the information will not be released while they are trying to make a record?
Barbara B. Babcock: They have the ability to go to court-
John Paul Stevens: I see.
Barbara B. Babcock: -- to stop it from being released.
John Paul Stevens: It's saying with the wrong procedure, well they do, you concede they have right to go to court?
Barbara B. Babcock: Yes, absolutely and the only thing that we are concerned with is the standard of review and the statute under which it’s reviewed and they would still have that same right and in fact they have exercised it freely. In closing, let me say that though I started by saying that this not a Freedom of Information Act case, it is obvious that the Freedom of Information Act is implicated here and in the Court’s decision and we are in great need of direction from the Court in this kind of case, we ask that you mandate the orderly procedure under the Administrative Procedure Act, which the Third Circuit has established that you hold that neither Exemption 4 or for that matter any other exemption is mandatory, that you find the validly issued regulations are authorization by law and that you act in this opinion in truth to the spirit of the (Inaudible) with which all it faults and burdens and it’s daily difficult balancing is bringing a measure of openness to the government that is unprecedented and which was the intent of Congress.
Warren E. Burger: You have anything in further Mr. Braverman?
Burt Braverman: Yes Mr. Chief Justice.
Warren E. Burger: Very well.
Burt Braverman: This is something of a case where the pendulum has swung a bit too far. Congress was attempting to eliminate government secrecy and one way it was going to do that was to get rid of the so called public interest standard that was in Section 3 of the Administrative Procedure Act in the 50s and early 60s. That public interest standard was used to shield agency documents. Now the government is here 10,12,14 years later and it’s saying, “Well, we are going to decide these questions under that public interest standard.” Back then it was the public’s right that was being sacrificed when the agency exercised or mis-exercised that public interest standard. Today it’s the private persons right that’s being sacrificed when the agency again lacking an adequate record, lacking any standards, lacking any guidelines simply says, “We’re going to ignore the fact that disclosure of this information is going to cause you what the District Court found to be substantial competitive injury and because of what we perceive to be the better way of things, the public interest, we’re going to disclose those documents.” I don’t think Congress ever intended that the pendulum swing so far that the private interests in their property in their privacy be damaged like that. The District Court’s finding --
Thurgood Marshall: You wouldn’t mind if you get a record on that, do you?
Burt Braverman: The problem is that there cannot be an adequate record in these cases. In almost all of the reverse FOIA cases that have gone to the Court of Appeals, in this case, in the Sears Eckerd case in the Seventh Circuit, in the General Dynamics case in the Eight Circuit, the agency found that the document should be disclosed, that the reverse FOIA plaintiffs went to court and the District Court found that there would be substantial competitive injury and then because those courts found that there should be APA review, they remanded, then they did not find that the finding of competitive injury was improper. They simply said that the agency should have -- should have been the one to examine whether there would be injury. The problem is, is that under the FOIA the agency cannot conduct an adequate fact finding inquiry because it doesn’t have the time. In this case we were notified.
Thurgood Marshall: So the courts have the time?
Burt Braverman: The courts, the courts --
Thurgood Marshall: We always have the time, nobody else has it?
Burt Braverman: The difference is, is that the court is not subject to the 10-day limitation that is found in the FOIA and the agencies are and it is simply impossible for an agency employee who has no expertise in the question of determining competitive injury to get in some cases 1000s of pages of documents in front of him and to try to make a judgment in a matter of days and also to assume that the Company itself can make the kind of showing necessary in this case. And this is just impossible and this is what gives rise to our contention, that the agency fact finding procedures here are inadequate. Its the procedures, the fact finding procedure that is inadequate, not merely the record in these cases and under this Court’s precedent in Overton Park even if you were to find that the APA was the proper basis for review, we think you should still find that there is a right to a de novo trial until the time that Congress gets around to saying that the 10-day period won’t work and I hasten to add that the Freedom of Information Act Amendments were in 74 when the 10-day period was added were vetoed by the President in part because he expressly said, “The 10-day limit won’t work, it will be impossible to operate under the Act.”
Potter Stewart: Suppose under the -- without the Freedom of Information Act before it was even passed 1905 is on the books. Suppose the agency could by a set of regulations provide for the release of the information covered by 1905. Suppose that regulations would qualify as a law.
Burt Braverman: If regulations would qualify then perhaps those regulations could disarm the Trade Secret Law. They would constitute authorization by law.
Potter Stewart: Yes, unless suppose that and then comes the Freedom of Information Act. You say that -- you say that the Freedom of Information Act would forbid the disclosure of what the agency could have disclosed before the Act.
Burt Braverman: The express affirmation in the legislative history.
Potter Stewart: Yes or no.
Burt Braverman: Yes, yes.
William H. Rehnquist: So that, what was purported to be on the part of Congress an Act setting a floor under disclosure by the agency in your view set a ceiling and at least once.
Burt Braverman: It continued to recognize practice.
William H. Rehnquist: What was Justice White’s question was that did the Freedom of Information Act change the previous practice.
Byron R. White: It locked up -- did the Freedom of Information Act lock up something that was available before or not?
Burt Braverman: The information as a practice.
Byron R. White: You said it is.
Burt Braverman: It was not available.
Byron R. White: You said it is.
Burt Braverman: I was not available and it provided mandatory protection for it.
Byron R. White: No. I have it, my example is suppose before the Freedom of Information Act was passed this information was available even though under 1905 because the agency had provided for release by regulations.
Burt Braverman: If there were regulations, yes.
John Paul Stevens: All right then comes the Freedom of Information Act and you say that what was previously available is now unavailable.
Potter Stewart: Because of Exemption 4 and its legislative.
Byron R. White: That’s my advice to your submission.
Potter Stewart: I’m sure that’s your submission.
Burt Braverman: That is it.
Warren E. Burger: What is that you don’t agree -- my consideration to the Congress that FOIA was an effort to have some harmony and the uniformity and among that dozens and dozens of agencies about disclosure, was that a factor?
Burt Braverman: Certainly it was intention to eliminate the public interest standard that was unevenly applied by agencies by eliminating the public interest standard and by putting in a legislative standard that Congress set and not the agencies, yes--
Warren E. Burger: Would you say that it’s still unevenly applied because each agency has a different view of the exemptions do I understand that?
Burt Braverman: A different view perhaps and also differing amounts of expertise, different perceptions of what -- what the public interest should be. Congress had the uniform perception of what the -- what the public interest should be. If I can respond to Mr. Justice White’s question, the one, the one thing that should be noted is that we do not believe that Congress intended agency regulations to constant --
Byron R. White: I’m quite aware of that -- I’m quite aware of that, but your submission is that even if it did the Freedom of Information Act changed the rule.
Burt Braverman: It would have to be read as a later legislative statement.
Byron R. White: Yes.
Warren E. Burger: Thank you counsel. The case is submitted.