# Tennessean Newspapers, Inc. v. Federal Housing Administration > Court of Appeals for the Sixth Circuit · May 4, 1972 · 464 F.2d 657 URL: https://www.frixlaw.com/law-library/cases/9458521 ## Case - **Full name:** TENNESSEAN NEWSPAPERS, INC., Plaintiff-Appellant, v. FEDERAL HOUSING ADMINISTRATION Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** May 4, 1972 - **Citations:** 464 F.2d 657; 1972 U.S. App. LEXIS 9741 - **Precedential status:** Published - **Opinion:** Concurrence by Miller - **Judges:** Miller, Edwards, Wilson - **Cited by:** 51 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9458521 ## Opinion text WILLIAM E. MILLER, Circuit Judge (concurring in the result). This is not the occasion, in my view, for broad generalizations concerning the purposes, nature and scope of the Freedom of Information Act. As pointed out by the District Judge in his memorandum opinion “at an initial hearing on the plaintiff’s motion for a preliminary injunction, the FHA volunteered in open court to furnish the plaintiff a copy of the appraisal report, but to delete therefrom the name of the appraiser.” Since FHA thus acquiesced in supplying the contents of the document, the only real issue before him was whether under the Freedom of Information Act it should be required to disclose the identity of the appraiser. On this issue the District Court stated: “However, since no possible purpose would be served by releasing the identity of the appraiser and based on equitable considerations, the court decrees that the identity of the appraiser be withheld.” Judge Edwards, as well as the parties, appear to agree that we are concerned on this appeal solely with the applicability of exception five of the Act, ( 5 U.S.C. § 552 (b) (5), the text of which is quoted in Judge Edwards’ opinion. The key to a proper construction of this exception is supplied in the opinion of the Ninth Circuit in General Services Administration v. Benson, 415 F.2d 878 (1969). Construing the fifth exception, the Court in Benson stated that the applicable test is whether the documents would be available on discovery in any litigation in which the agency having the records might be involved. As there pointed out, “the standards for decision are the discovery practices, as regulated by the courts.” F.R.Civ.P. 26(b) provides that parties may obtain discovery regarding any material not privileged which is relevant to the subject matter of the litigation, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable material. F.R.C.P. 26(b) (1). Thus, applying the Benson criterion, it is clear to me that FHA, having offered the contents of the document itself, was also required to disclose the identity of the person who prepared it. Specifically I do not find that we are required in this case to determine *663 whether the appraisal report would qualify for the fifth exception if no proffer at all had been made by FHA. Nor to dispose of this appeal do I find it necessary to decide whether a court may not in some situations under the Freedom of Information Act apply general equitable principles. A strong argument can be made that courts do possess equitable powers under the Act. If the federal discovery rules in civil cases constitute the guide to the parameters of the fifth exception, it is significant that F.R.C.P. 26(c), governing all discovery procedures, vest in the courts extremely broad power to enter “protective orders” to accomplish the ends of justice in given cases — a provision which strongly suggests the traditional balancing tests of equitable jurisdiction. Moreover, the Freedom of Information Act itself invokes the traditional injunctive power of equity as the enforcement mechanism. Finally, the Benson court, relied upon in Judge Edwards’ opinion, although adopting the discovery rules as the test for the fifth exception, specifically held that the Freedom of Information Act confers equity jurisdiction on the courts: In exercising the equity jurisdiction conferred by the Freedom of Information Act, the court must weigh the effects of disclosure and nondisclosure, according to traditional equity principles, and determine the best course to follow in the given circumstances. The effect on the public is the primary consideration. Although the District Judge apparently felt that equitable considerations required a withholding of the appraiser’s name, it is my opinion that the exact opposite is true. It is, of course, possible to conceive of some governmental operations which may require the nondisclosure of the identities of persons performing public functions. These instances, however, in a democratic society, must necessarily constitute rare exceptions. Generally, anonymity is not the privilege of individuals charged with the responsibility of transacting the business of government. The suggestion in this case by FHA that exposure to possible publicity might cause FHA employees to be overly-cautious in making appraisals, if approved as an excuse for non-disclosure, could set a precedent fraught with dangerous implications in connection with the activities of other governmental officials and agencies. It can hardly be said to rise to the dignity of an equitable reason for nondisclosure. That knowledge on the part of the public of the names and activities of public officials may influence their conduct is precisely the reason that we have deemed the possibility of public exposure to be so important. Therefore, as equitable considerations are lacking in this case to support FHA’s position, I feel that it is unnecessary as stated above, to decide whether situations may not arise which would warrant the courts under the Freedom of Information Act to apply such considerations. For the separate reasons stated herein, I concur in the ultimate result indicated in Judge Edwards’ opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9458521. Public record. Not legal advice.