declining to hold that “mere disclosure of intra-agency memorandum to an advisory committee makes the memorandum public information”
How later courts described this case
- declining to hold that “mere disclosure of intra-agency memorandum to an advisory committee makes the memorandum public information”
- “plain meaning doctrine has always been considered subservient to a truly discernible legislative purpose”
Written by the judges who cited it.
The opinion
On Appellees’ Suggestion for Rehearing En Banc
Before BAZELON, Chief Judge; and WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
ORDER
PER CURIAM.
Appellees’ suggestion for rehearing en banc having been transmitted to the full Court and no Judge having requested a vote thereon, it is
ORDERED by the Court en banc that appellees’ aforesaid suggestion for rehearing en banc is denied.
Statement of BAZELON, Chief Judge, in which Circuit Judge J. SKELLY WRIGHT concurs, explaining why he voted to deny rehearing en banc:
Given the broadest possible interpretation, Exemption 5 relating to “inter-agency or intra-agency memorandums” could, as appellees predict, gut the open meeting provisions of the Federal Advisory Committee Act. 1 The rubric of “inter-agency or intraagency memorandums” can conceivably be stretched to include all communications between agency and advisory committee concerning policy advice. Premising their argument on such an expansive reading, appellees argued that Exemption 5 was “inherently inconsistent” with the legislative policy behind the Act and demanded that it be judicially excised. That the panel refused to read Exemption 5 out of the statute entirely does not so misstate applicable law as to merit rehearing en banc. Cf. FAA Administrator v. Robertson, 422 U.S. 255 , 95 S.Ct. 2140 , 45 L.Ed.2d 164 (1975).
On the other hand, preserving the open meeting requirements of the Federal Advisory Committee Act is indisputably a matter of “exceptional importance.” F.R.A.P. 35(a)(2). The Act is a vital first step toward opening up to public scrutiny and participation levels of agency decisionmaking where public policy begins to take shape. That promotes peer review by other experts steeped in the subject-matter as well as oversight by the public. See Ethyl Corp. v. EPA, No. 73-2205 (March 19, 1976) (Bazelon, C. J., concurring).
The parties here did not urge, and the court did not consider, a narrowing construction of Exemption 5 in the context of the Advisory Committee Act. 2 The panel *110 opinion does not, for example, foreclose the possibility that a specific, pre-existing document qualifying as an “inter-agency or intra-agency memorandum” before it is passed to the advisory committee may be necessary to trigger the exemption. See Nader v. Dunlop, 370 F.Supp. 177, 180 (D.D.C. 1973). 3 Nor does it decide whether a committee discussion of the same subject matter as that covered in an exempt memorandum, which discussion does not — or need not — involve the specific contents of the memorandum, is “concerned with matters” exempt under § 10(d). Finally it is not decided whether “reasonably segregable” portions of meetings concerned with nonexempt matters must remain public. Nader v. Dunlop, supra, 370 F.Supp. at 179 .
As I read it, the panel merely decided that Exemption 5 must be given some effect in the context of the Federal Advisory Committee Act — leaving open the exact confines of the exemption. I therefore vote to deny rehearing en banc.
. 5 U.S.C. App. I, § 10(a) (Supp. Ill, 1973). Section 10(d) exempts from the open meeting provisions those meetings “concerned with matters” exempt from disclosure under the Freedom of Information Act. See 5 U.S.C. § 552 (b)(5) (1970) (“inter-agency or intra-agency memorandums”).
. For the suggestion that limiting constructions of Exemption 5 are possible, see Perritt & Wilkinson, Open Advisory Committees and the Po *110 litical Process: The Federal Advisory Committee Act After Two Years, 63 Geo.L.J. 725, 744-745 (1975). But see, Tuerkheimer, Veto by Neglect: The Federal Advisory Committee Act, 25 Am.L.Rev. 53, 66 n.70 (1975).
Appellees frankly eschewed that approach: “There are, in our view, only two possible interpretations to the relation between Exemption 5 and the Advisory Committee Act’s provisions for open meetings. Either no meeting can be closed on the basis of Exemption 5, or every meeting can be closed: there are no interim positions.” Appellee’s brief, 19.
. By rejecting the claim that “mere disclosure of an intra-agency memorandum to an advisory committee makes the memorandum public information,” at-of-U.S.App.D.C., at 108 of 535 F.2d, the panel did not necessarily adopt the converse: that an otherwise nonexempt memorandum becomes exempt either as an “intra-agency” or an “inter-agency” memorandum by virtue of being sent to an advisory committee.
Given the peculiar hybrid status of advisory committees under the Act, and the definitions distinguishing them from agencies, compare 5 U.S.C. App. I, § 3(2) with id., § 3(3), it is entirely possible that memorandums sent to them should be construed as falling into neither the “intra-agency” nor the “inter-agency” category.
Appellees did not rely on the fact that the memorandum here was manufactured specifically for the purpose of closing the meeting. Appellee’s Petition for Rehearing and Suggestion for Rehearing En Banc, 5 n.3.