# Environmental Protection Agency v. Mink > Supreme Court of the United States · January 22, 1973 · 410 U.S. 73 URL: https://www.frixlaw.com/law-library/cases/9425154 ## Case - **Full name:** ENVIRONMENTAL PROTECTION AGENCY Et Al. v. MINK Et Al. - **Court:** Supreme Court of the United States - **Decided:** January 22, 1973 - **Citations:** 410 U.S. 73; 1 Media L. Rep. (BNA) 2448; 3 Envtl. L. Rep. (Envtl. Law Inst.) 20057; 4 ERC (BNA) 1913; 93 S. Ct. 827; 35 L. Ed. 2d 119; 1973 U.S. LEXIS 136 - **Precedential status:** Published - **Opinion:** Concurrence by Stewart - **Judges:** White, Burger, Stewart, Blackmun, Powell, Brennan, Marshall, Douglas, Rehnquist - **Cited by:** 1,129 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Reported superseded by statute, as recognized in Central Intelligence Agency v. Sims — not on the Supreme Court's list. - Negative treatments: 2 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9425154 ## How later opinions describe it (automated extraction) - finding that FOIA's legislative history supports a balance wherein government may not withhold factual material that would be available but for its location in an internal memo alongside matters of policy or opinion, but neither requiring disclosure of confidential policy reco… - stating that in camera inspection “need not be automatic,” and that an agency should have the opportunity “to establish with the District Court that the documents sought fall clearly beyond the range of material that would be available to a private party in litigation with the… - explaining that "[e]xemption 5 contemplates that the public's access to internal memoranda will be governed by the same flexible, common-sense approach that has long governed private parties' discovery of such documents involved in litigation with Government agencies” - concluding that notes taken by an investigator during an interview were not subject to Exemption - explaining the “recognized rule” that confidential agency advisory opinions were 8 No. 19-2088 privileged and therefore ordinarily exempt from production in civil discovery absent a showing of hardship ## Opinion text Mr. Justice Stewart, concurring. This case presents no constitutional claims, and no issues regarding the nature or scope of “Executive privilege.” It involves no effort to invoke judicial power to require any documents to be reclassified under the mandate of the new Executive Order 11652. The case before us involves only the meaning of two exemptive provisions of the so-called Freedom of Information Act, 5 U. S. C. § 552 . My Brother Douglas says that the Court makes a “shambles” of the announced purpose of that Act. But it is Congress, not the Court, that in § 552 (b)(1) has ordained unquestioning deference to the Executive’s use of the “secret” stamp. As the opinion of the Court demonstrates, the language of the exemption, confirmed by its legislative history, plainly withholds from disclosure matters “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.” In short, once a federal court has determined that the Executive has imposed that requirement, it may go no further under the Act. One would suppose that a nuclear test that engendered fierce controversy within the Executive Branch of our Government would be precisely the kind of event that should be opened to the fullest possible disclosure consistent with legitimate interests of national defense. Without such disclosure, factual information available to the concerned Executive agencies cannot be considered *95 by the people or evaluated by the Congress. And with the people and their representatives reduced to a state of ignorance, the democratic process is paralyzed. But the Court’s opinion demonstrates that Congress has conspicuously failed to attack the problem that my Brother Douglas discusses. Instead, it has built into the Freedom of Information Act an exemption that provides no means to question an Executive decision to stamp a document “secret,” however cynical, myopic, or even corrupt that decision might have been. The opinion of my Brother Brennan dissenting in part makes an admirably valiant effort to deflect the impact of this rigid exemption. His dissent focuses on the statutory requirement that “the court shall determine the matter de novo . . . .” But the only “matter” to be determined de novo under § 552 (b) (1) is whether in fact the President has required by Executive Order that the documents in question are to be kept secret. Under the Act as written, that is the end of a court’s inquiry. * As the Court points out, “Congress could certainly have provided that the Executive Branch adopt new procedures or it could have established its own procedures— subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.” But in enacting § 552 (b)(1) Congress chose, instead, to decree blind acceptance of Executive fiat. Similarly rigid is §552 (b)(3), which forbids disclosure of materials that are “specifically exempted from disclosure by statute.” Here, too, the only “matter” to be determined in a district court’s de novo inquiry is the factual existence of such a statute, regardless of how unwise, self-protective, or inadvertent the enactment might be. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9425154. Public record. Not legal advice.