# The Washington Post Company v. United States Department of State

> Court of Appeals for the D.C. Circuit · December 28, 1982 · 685 F.2d 698

URL: https://www.frixlaw.com/law-library/cases/9469564

## Case

- **Full name:** The WASHINGTON POST COMPANY, Appellant, v. UNITED STATES DEPARTMENT OF STATE, Et Al., Appellees
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** December 28, 1982
- **Citations:** 685 F.2d 698; 222 U.S. App. D.C. 248; 8 Media L. Rep. (BNA) 2206; 1982 U.S. App. LEXIS 23024
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Friedman, Ginsburg, McGOWAN, Per Curiam, Scalia
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by United States Department of State v. Washington Post Co., 464 U.S. 979 (1983).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469564

## Opinion text

ON DENIAL OF REHEARING EN BANC
Before ROBINSON, Chief Judge, and WRIGHT, TAMM, MacKINNON, WIL-KEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK and SCALIA, Circuit Judges.
ORDER
PER CURIAM.
Appellees’ suggestion for rehearing en banc has been circulated to the full Court. A majority of the Court has not voted in favor of the suggestion. On consideration of the foregoing, it is
ORDERED by the Court en banc that the aforesaid suggestion is denied.
*707 A statement on the denial of rehearing en banc, filed by Circuit Judge SCALIA, in which Circuit Judges MacKINNON and BORK concur, is attached.
SCALIA, Circuit Judge:
We believe this case should be reheard en banc, not merely because the effect of the panel decision is to overturn a congressionally approved tradition and practice of confidentiality in foreign affairs matters that is almost two centuries old. It is conceivable that Congress produced that surprising result, either intentionally or inadvertently, in the 1976 Amendments to the Freedom of Information Act (FOIA), Pub.L. No. 94-409, 90 Stat. 1247 (1976). Rather, the source of our concern is that in arriving at that surprising result the panel decision embraced a process of statutory interpretation that makes nonsense of legislation enacted after the 1976 Amendments. Thus, we find that we now have on the books a statute, enacted in 1980, which places the most detailed limitations upon access by the Comptroller General, by employees of the Executive branch, and even by Members of Congress themselves, to a category of material which (according to the panel decision) any member of the public may obtain at will. * 31 U.S.C. § 67 (f) (Supp. IV 1980).
Such a perverse result is contrary to the common-sense prescription, elevated to a rule of statutory construction, that “[statutes in pari materia, although in apparent conflict, are so far as reasonably possible construed to be in harmony with each other.” 2A Sutherland, Statutory Construction (C. Sands 4th ed. 1973) § 51.02 at 290. The 1976 Amendments to FOIA may reasonably be said to have rendered that rule inapplicable insofar as previously enacted statutes are concerned, since the avowed purpose of those Amendments was to eliminate some of the secrecy which earlier statutes preserved. See H.R.Rep. No. 880 (Part I), 94th Cong., 2d Sess. 23 (1976); H.R.Rep. No. 1441, 94th Cong., 2d Sess. 25 (1976) (Conference Report), U.S.Code Cong. & Admin. News 1976, p. 2183. It is quite another matter, however, to elevate FOIA to what other courts have disapprovingly called “a prospective pre-emption” of future legislation. King v. IRS, 688 F.2d 488, 495 (7th Cir.1982), quoting from Zale Corp. v. IRS, 481 F.Supp. 486, 489 (D.D.C.1979). Such an approach to legislative construction lays traps for the unwary, in Congress and the Executive branch as well as among the general public, and impedes the development of a coherent body of law in this field.
We believe that the application of Exemption 3 to confidential expenditures cannot properly be assessed on the basis of its legislative history alone, and without regard to related subsequent enactments. The opinion of the panel barely mentions the 1980 statute; the concurring opinion acknowledges that its coexistence with the panel’s disposition “does not make sense,” supra p. 707, but apparently regards that as an issue separate and apart from the proper interpretation of Exemption 3. In our view, the later enactment was a factor that demanded attention — not as an isolated phenomenon whose incompatibility with the court’s interpretation of Exemption 3 could be marvelled at, but as an essential element of the interpretive process itself. The 1980 legislation does not, to be sure, specifically deal with disclosure to the public, but its assumptions and implications with regard to such disclosure could not be clearer. And in another respect it is more specifically directed to the present question than the 1976 legislative history, since it addresses disclosure of confidential expenditures in particular, rather than disclosure of government information in general.
The language of Exemption 3 would certainly bear the interpretation that the Government urged. As the panel opinion indicates, the dispute comes down to whether the criterion “unforeseen emergencies arising in the diplomatic and consular service,” 22 U.S.C. § 2671 (1976), is particular enough to qualify as a “particular criterion] for withholding” within the meaning of Exemption 3. We hardly thing that the language of the 1976 statute and its legislative history provide such a clear answer to that abstruse question that the later legislation cannot be accommodated, as traditional canons of interpretation *708 would demand. That is the course we would follow, making it unnecessary to remand the case in the hope that the district court might devise some way to undo the harm produced.
We have thought it worthwhile to express these views not only because the specific result in the present case may be harmful to the national interest, but because the theory of “prospective pre-emption” which the panel decision represents is sure to confuse the application of future laws and to swell unnecessarily the list of FOIA filings.
The panel’s assurance that it is “not to be understood as implying that there is no FOIA exemption that could conceivably encompass the disputed material,” slip op. at 14, is a hollow one, insofar as it is meant to apply to the full range of material here in question. Other exemptions, such as the exemption for classified material, 5 U.S.C. § 552 (b)(1), may apply to particular items, but only Exemption 3 can conceivably cover the entire category of material that the 1980 statute so scrupulously withholds from all government officials except a designated few.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469564. Public record. Not legal advice.