Gary A. Soucie v. Edward E. David, Jr., Director, Office of Science and Technology

WILKEY, Circuit Judge

(concurring) :

I concur in the result reached and in the court’s opinion, except on the point of equitable discretion discussed below.

I.

It is necessary to remand this matter to the trial court, because the trial court did err in not holding the Garwin Report a record of an agency subject to the Freedom of Information Act, and therefore quite logically did not proceed to consider the exemptions under that Act.

II.

Conceivably on remand the trial court may also reach a question of constitutional privilege. 1 To put this question in perspective, it must be understood that the privilege against disclosure of the decision-making process is a tripartite privilege, because precisely the same privilege in conducting certain aspects of public business exists for the legislative and judicial branches as well as for the executive. It arises from two sources, one common law and the other constitutional.

Historically, and apart from the Constitution, the privilege against public disclosure or disclosure to other coequal branches of the Government arises from the common sense-common law principle that not all public business can be transacted completely in the open, that public officials are entitled to the private advice of their subordinates and to confer among themselves freely and frankly, without fear of disclosure, otherwise the *1081 advice received and the exchange of views may not be as frank and honest as the public good requires.

No doubt all of us at times have wished that we might have been able to sit in and listen to the deliberation of judges in conference, to an executive session of a Congressional committee or to a Cabinet meeting in order to find out the basis for a particular action or decision. However, Government could not function if it was permissible to go behind judicial, legislative or executive action and to demand a full accounting from all subordinates who may have been called upon to make a recommendation in the matter. Such a process would be self-defeating. It is the President, not the White House staff, the heads of departments and agencies, not their subordinates, the judges, not their law clerks, and members of Congress, not their executive assistants, who are accountable to the people for official public actions within their jurisdiction. Thus, whether the advice they receive and act on is good or bad there can be no shifting of ultimate responsibility. 2

Insofar as the executive branch is concerned, most, if not all, of the information protected by this common law privilege is now covered by the fifth exemption to the Freedom of Information Act which exempts from disclosure “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.” 3

The constitutional part of the privilege arises from the principle of the separation of powers' among the legislative, executive and judicial branches of our Government. This at first glance may not seem relevant' here, where the appellants are private citizens relying on the Freedom of Information Act, but it puts the matter in a different focus to know that originally Congressman Henry S. Reuss had sought to obtain this Report over a period of months. Whatever justification lies behind the refusal of his request has a bearing on appellants’ rights here. Only after both Dr. Du-Bridge and Mr. Ehrlichman, Assistant to the President, had declined to accede to the Congressman’s request — on the ground that “the report was in the nature of inter- and intra-agency memo-randa which contained opinions, conclusions and recommendations prepared for the advice of the President” — did the appellants make their request.

Appellants invoked the Freedom of Information Act in support of their request, but as the court’s opinion points out — -without deciding whether the refusal of the Assistant to the President was justified or not — “ * * * while his [Mr. Reuss’] right as a citizen to obtain the Report under the Act is equal to that of appellants, his right as a Congressman is presumably greater” (footnote 6). Obviously Congress could not surmount constitutional barriers — if such exist in this or any other given case — by conferring upon any member of the general public a right which Congress, neither individually nor collectively, possesses. Water does not naturally rise higher than its source.

Recognition of the necessity, on both grounds cited above, of preserving the confidentiality of certain papers and deliberations has come from all three branches of our Government. A few examples demonstrate the universality and antiquity of the principles involved here.

While the constitutional privilege has been asserted most frequently in our history by the executive against the demands of the legislature, yet the Congress itself has always recognized a privilege for its own private papers and deliberations. Not only is there no provision or procedure for a demand by a *1082 private citizen for access to any papers deemed confidential, but no court subpoena is complied with by the Congress or its committees without a vote of the house concerned to turn over the documents willingly in response to the request of the court, thus properly preserving the co-equal separate status of that branch of the Government. For example,

[N]o evidence of a documentary character under the control and in the possession of the House of Representatives can, by the mandate of process of the ordinary courts of justice, be taken from such control or possession but by its permission. 4

The judiciary, as perhaps inherently the weakest of the three branches, has most frequently reiterated the principle of separation of powers, the classic expression being in Kilbourn v. Thompson:

It is * * * essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. 5

The reason for the separation of powers was well put by Mr. Justice Brandéis:

The doctrine of the separation of powers was adopted by the convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments to save the people from autocracy. 6

When President Washington first declined to furnish the House of Representatives with a document requested by it, he gave as his reason for refusal,

[I]t is essential to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request. 7

These examples of recognition by all three branches of a constitutional privilege to withhold certain documents under given circumstances not only show the tripartite nature of the constitutional privilege, but are relevant here, where the appellants are private citizens, because the original request for the Gar-win Report stemmed from a Congressman and was denied by the executive on grounds the validity of which is not yet finally determined. But it would be an absurdity to contend that a Congressman — who is both citizen and Member of the House of Representatives — could not have access to a document in the executive branch, and yet another citizen could gain access on the strength of a statute enacted by Congress. Thus, if the exemptions to the Freedom of Information Act are found not to permit withholding of the information sought here, the exec *1083 utive may still assert a constitutional privilege on the ground that Congress may not compel by statute disclosure of information which it would not be entitled to receive directly upon request.

Part II of the court’s opinion also expresses the view that Congress, in providing for de novo court review of agency refusals to disclose information, intended to require the courts to enjoin withholding of any agency record not exempted by the Act and not protected by a constitutional privilege. Congress, the opinion states, “did not intend to confer on district courts a general power to deny relief on equitable grounds apart from the exemptions in the Act itself.” This quoted statement and related discussion relate to an issue which is not presented for decision in this case and is not likely to face the trial court on remand. There is no suggestion in the record that the District Court here denied relief on equitable grounds, nor is it likely that such grounds could be presented in the context of this case. It has been suggested that a court may, on equitable grounds, decline to require disclosure of records not covered by a specific exemption in the Act, where to order disclosure would irreparably invade personal privacy or cause the Government to violate an agreement with a private party that non-commercial and non-financial 8 information provided by him will be kept confidential. 9 There do not appear to be such equitable grounds for non-disclosure present in the instant case and I would not therefore reach the difficult question of statutory construction of the District Court’s power in such circumstances.

The Act itself merely provides: “On complaint, the district court * * * has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 10 It does not in terms require that such jurisdiction be exercised in all cases. The legislative history pulls in opposite directions on this question; the Senate Report states:

It is the purpose of this [Act] to * * * establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language. * * * It is essential that agency personnel, and the courts as well, be given definite guidelines in setting information policies. Standards such as “for good cause” are certainly not sufficient. 11

The House Report, on the other hand, relates that under the Act:

The Court will have authority whenever it considers such action equitable and appropriate to enjoin the agency from withholding its records and to *1084 order the production of agency records improperly withheld. 12

And a noted commentator has expressed the view that the denial of relief on equitable grounds is an appropriate course in certain circumstances. 13

There is, no doubt, force to the majority’s opinion that the thrust of the Act is to limit the grounds for agency withholding to the exemptions therein stated, and that the discretion of the court in enforcing the Act should thus be similarly curtailed. Nevertheless, because of the conflicting legislative history and the difficulty in determining congressional intent on this matter, I believe that pursuant to sound principles of judicial decision making, decision of this issue can and should await the case where it is squarely raised. I therefore express no view as to the correctness of the majority’s suggestion that the courts are generally without equitable power to decline to order production of agency records in cases not specifically covered by exemption.

III.

Part III of the court’s opinion is a summary of the laudable objectives of the Freedom of Information Act of assuring public access to information necessary to making informed decisions on public issues, but I respectfully suggest it is nevertheless unessential to our decision here. Since it forms part of the court’s opinion, however, I think it should be made clear that neither the public nor the Congress is being denied the facts here in regard to the supersonic transport, and therefore recourse to legal action under the Freedom of Information Act as a practical matter was simply unnecessary.

Each of the persons who were asked by Dr. DuBridge to form the ad hoc panel to prepare the Report for the President could be called before the appropriate congressional committee and asked for his views on any aspect of the SST program. There is no reason why the views of these scientists and engineers cannot be made available to the Congress and to the public. The only matter about which they should not be asked is exactly what advice they gave the President. Furthermore, almost two years have gone by since they expressed their views to the President, and the opinions which they might now give to the Congress or to the public, in the light of additional information obtained, might be somewhat different from their best advice at the time they helped formulate the Garwin Report. Even without an appearance before a congressional committee any one of several of these scientists or engineers could be interviewed by the press or on TV, invited to write an article for a magazine or newspaper, or participate in public discussion in any form, in order to enlighten the public. There would be nothing improper in a public expression of individual opinion, so long as exactly what the person advised the President was not explicated.

As a matter of recorded fact, Dr. Richard Garwin, who chaired the panel, has done just that. He has appeared before three different congressional committees, 14 and has been publicly reported as stating that he had “said everything I have to say” in lengthy critical testimony about the SST before the three committees, although he appears to have *1085 carefully refrained from discussing the Garwin Report itself. 15

Thus it appears that alternate means of obtaining the facts in regard to the SST, other than a lawsuit to compel production of the Garwin Report, are available both to the public and to Congress. 16 This hints at the possibility that what the appellants are seeking here is really the advice given the President of the United States by his subordinates, rather than the facts in regard to the SST program on which the public and the Congress can form an intelligent judgment. Viewed in this light, the issues may take on a different aspect from those framed by the appellants.

. Although the trial court cited this as a second ground of its ruling, this issue has not been raised by the Government.

. Rogers, The Right to Know Government Business From the Viewpoint of the Government Official, 40 Marq.L.Rev. 83, 89 (1956). See generally, Kramer and Marcuse, Executive Privilege — A Study of the Period 1953-1960, 29 Geo.Wash. L.Rev. 623 (1961).

. 5 U.S.C. § 552 (b) (5) (Supp. V, 1970).

. H.R.Res. 427, 81st Cong., 2d Sess., 96 Cong.Rec. 565-66 (1950) ; see H.R.Res. 460, 81st Cong., 2d Sess., 96 Cong.Rec. 1400 (1950) ; H.R.Res. 465, 81st Cong., 2d Sess., 96 Cong.Rec. 1695 (1950) ; H.R.Res. 469, 81st Cong., 2d Sess., 96 Cong.Rec. 1765 (1950). Only recently, in a situation substantially the inverse of the present case, i. e., a suit to suppress publication of congressional documents, the House indicated its displeasure with, and asserted its independence from what it deemed an intrusion by the judiciary into its prerogatives with respect to its own documents. See Hentoff v. Ichord, 318 F.Supp. 1175 (D.D.C.1970), and H.R.Res. 1306, 91st Cong., 2d Sess., 116 Cong.Rec.H 11606, 11625 (daily ed. 14 Dec. 1970).

. 103 U.S. 168, 191 , 26 L.Ed. 377 (1880).

. Myers v. United States, 272 U.S. 52, 293 , 47 S.Ct. 21, 81 , 71 L.Ed. 160 (1926) (dissenting opinion).

. 1 Richardson, Messages and Papers of the Presidents 196 (1896).

. The fourth exemption of the Freedom of Information Act exempts from disclosure “commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552 (b) (4) (Supp. V, 1970).

. Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 767, 787, 791, 802 (1907).

. 5 U.S.C. 552(a) (3) (1967). In Hecht Co. v. Bowles, 321 U.S. 321 , 64 S.Ct. 587 , 88 L.Ed. 754 (1944), the statute involved directed that upon complaint of the administrator of the Emergency Price Control Act an injunction “shall he granted." Nevertheless the Supreme Court held that the District Court could decline to issue an injunction if equitable considerations indicated that to be the appropriate result. Contrarily, in United Steelworkers v. United States, 361 U.S. 39 , 80 S.Ct. 1 , 4 L.Ed.2d 12 (1959), the Court impliedly held that under a statute which provided that the District Court “shall have jurisdiction” to enjoin an industry-wide strike causing n national emergency, the trial judge had no equitable discretion to refuse to issue an injunction. (That conclusion was made explicit in the concurring opinion of Justices Frankfurter and Harlan.) The accommodation of these two precedents and their application to the statutory scheme of the Freedom of Information Act are, in my view, best accomplished in the context of a case where the issue is presented by the facts and argued by the parties.

. S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965).

. H.R.Rep.No.1497, 89th Cong., 2d Sess. 9 (1966).

. Davis, sufra, note 9.

. Hearings on H.R. 17755 Before the Subcomm. of the Senate Committee on Appropriations, 91st Cong., 2d Sess., pt. 2, at 1621 (1970) ; Hearings on Supersonic Transport Development Before the Subcomm. on Economy in Government of the Joint Economic Comm., 91st Cong., 2d Sess., pt. 4, at 904, 908 (1970) ; Hearings on Department of Transportation Appropriations Before the Subcomm. on Dept, of Transportation and Related Agencies Appropriations of the House Comm, on Appropriations, 91st Cong., 2d Sess., pt. 3 (Testimony of Members of Congress and Interested Individuals and Organizations) at 980 (1970).

. Dr. Garwin, at least, was interviewed by the Saturday Review, The Washington Post, and very likely a number of other media representatives. Bee Sutton, Is the SST Really Necessary, Saturday Review, 15 Aug. 1970, at 14; Washington Post, 21 Dec. 1970, § A, at 2. According to the latter report:

Garwin said he still did not feel free to discuss the study [made by the ad hoe panel at the request of the OST] itself, but he emphasized that he “said everything I have to say” about the SST in the course of critical testimony this year before three congressional committees.

These reports of Dr. Garwin’s interview's with the press were quoted and discussed on the Senate Floor. Bee 116 Cong.Rec. S 20921, S 20932 (daily ed. 21 Dec. 1970).

. Of course these considerations would not apply to personal advisors to the President such as members of the White House staff, who traditionally do not appear before Congress. But, as the court’s opinion indicates, Dr. Garwin and his confreres, operating under the direction of the OST, are not thus restricted.