warning letters sent to persons involved must be disclosed under § 552
How later courts described this case
- warning letters sent to persons involved must be disclosed under § 552
- purpose of exemption “to prevent premature discovery by a defendant in an enforcement proceeding”
Written by the judges who cited it.
The opinion
*26 ALBERT V. BRYAN, Circuit Judge
(dissenting):
I think letters of warning constitute “investigatory files” exempted from disclosure under the Freedom of Information Act, 5 U.S.C. § 552 (b) (7).
Such a communication is intended to assure fair play to a person who may appear to be in violation of any law. He may in good faith be entirely unaware of any wrongdoing, or circumstances may render the legality of his position simply uncertain. Presumably, he wants to obey the law. Admonishment from the Government agency may, indeed, evoke an explanation which would wholly dispel even the appearance of illegality and avoid the delay and expense of litigation.
But, divulge the warning and he is at once convicted or at least branded a lawbreaker. The public is quite willing to draw a sinister inference — for instance of questioned integrity — from the barest possibility of illegal conduct. Let the agency write a professional man, or anyone serving in a trust capacity, cautioning him that he may be in or nearing the breach of a statute, then make it available to the world, and the addressee is smeared inerasably. It matters not whether in truth there is a violation, or how inadvertent his deportment, and or how desirous he was from the very beginning to correct his deviation, if any. Protection of a citizen who upon receiving a warning letter complies with the law is a legitimate use of exemption (7) of the Act.
To say that Congress “by passing the Freedom of Information Act” has already resolved this predicament against the citizen is to beg the question, for the very question here is whether the Act does so. I am reluctant to believe Congress intended to expose him so unfairly to the stigma of accusation. On these grounds I would reverse the judgment of the District Court in regard to warning letters.