Petition — Department of Air Force v. Rose

Supreme Court brief1976

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In the Supreme Court of the United States

OcTOBER TERM, 1974

DEPARTMENT OF THE AIR FORCE, ET AL., PETITIONERS

Micuael. T. Rost, Ev At.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

ROBERT H. BORK,

Solicitor Gencral,

CARLA A. HILLS,

Assistant Attorney General,

DANNY J. BOGGS,

Assistant to the Solicitor General.

LEONARD SCHAITMAN, .

DONALD ETRA,

Attorneys,

Department of Justice,

Washington, D.C. 20520.

INDEX

Page

i eemmeceee l

a a 1

Se Bee Lae RR 2

RETEST AO ONDE DE ETE Spe 3

RL AEA ee ter ee eae ene eR aan 4

Reasons for granting the writ____-..........----------- 8

ee TASS aOR A Se NE Nee ele eee 18

Dt i. cdntcatmaepdunnenmbinaeanmneibenaaeeden 1A

pT eee ee 24A

(A ee aes ae 26A

pT ae Se eee 39A

CITATIONS

Cases:

City of Concord v. Ambrose, 333 F. Supp. 958_ -- _---- 17

Cuneo v. Laird, 338 F. Supp. 504, reversed, 484 F. 2d

1086, certiorari denied sub nom. Rosen v. Vaughn,

| ES ener enka eee 17

Environmental Protection Agency v. Mink, 410 US.

ee ee 12

Hawkes v. Internal Revenue Service, 467 F. 2d 787 ___- 17

ee, Wes Ge BE ccccccccucéeesscecauses 15

Rural Housing Alliance vy. United States Department

of Agriculture, 406 F. 2d 73................--.--- 15

Statute:

Freedom of Information Act, 5 U.S.C. 552__...__--- 3,4

I ckcccdnndbosenens 2,3, 5,6, 8, 15, 17

Section 552(b)(6)__....---- 2, 3,6, 7,8, 9, 10, 11, 14, 15

oa)

561-732—7i——-1

Miscellaneous:

Hearings before a Subcommittee of the House Com-

mittee on Government Operations, on H.R. 2012

et al. (Federal Public Records Law), 89th Cong.,

H. Rep. No. 1197, 89th Cong., 2d Sess......._____-

H. Rep. Ne. 1497, 89th Cong., 2d Sess___...._____-

Rose A Prayer for Relief (New York University Law

I ta a

S. Rep. No. 813, 89th Cong., Ist Sess..._......-

The New York Times, Book Review Section, p. 47

I ae

In the Supreme Court of the United States

October TERM, 1974

No.

DEPARTMENT OF THE AIR FORCE, ET AL., PETITIONERS

Micnaern T. Rose, er ar.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

The Solicitor General, on behalf of the Department

and Secretary of the Air Foree and the Superin-

tendent, Commandant of Cadets and Executive for

Honor and Ethies of the Air Force Academy, peti-

tions for a writ of certiorari to review the judgement

of the United States Court ef Appeals for the Second

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infre,

pp. LA-23A) is reported at 495 F, 2d 261. The opinion

of the district court (App. C, infra, pp. 26A-38A) is

net reported.

JURISDICTION

The judgment of the court of appeals ( App. D, iu-

fra, pp. 39A-40A) was entered on March 29, 1974. \

(1)

timely petition for rehearing was denied on May 29,

1974 (App. B, infra, pp. 24A-25A). On August 20,

1974, Mr. Justice Marshall extended the time for filing

a petition for a writ of certiorari to September 26,

1974, and on September 16, 1974, he further extended

the time to October 26, 1974. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether exemption 6 of the Freedom of Infor-

mation Act, which exempts from disclosure ‘* person-

nel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted in-

vasion of personal privacy,’’ covers all personne! files

rather than, as the court of appeals held, only those

whose disclosure “would constitute a clearly unwar-

ranted invasion of personal privacy.”

2. Whether exemption 6 bars disclosure of sum-

maries of proceedings against cadets at the Air Force

Academy accused of violation of the Honor and

Ethics Codes, because such disclosure would consti-

tute “a clearly unwarranted invasion of personal pri-

vacy.”

3. Whether the exemption from disclosure in ex-

emption 2 of the Freedom of Information Act for

inatters “related solely to the internal personnel rules

and practices of an ageney” is inapplicable, as the

court of appeals held, if the material has ‘‘a substan-

tial potential for public interest outside the Govern-

ment.”

STATUTE INVOLVED

The Freedom of Information Act, 5 U.S.C. 552,

provides in pertinent part:

(a) Each agency shall ‘make available to the

public information as follows:

+ +. * . *

(3) Except with respect to the records made

available under paragraphs (1) and (2) of this

subsection, each agency, on request for identi-

fiable records made in accordance with published

rules stating the time, place, fees to the extent

authorized by statute, ana procedure to be fol-

lowed, shall make the records promptly avail-

able to any person. On complaint, the district

court of the United States in the district in

which the complainant resides, or has his prin-

cipal place of business, or in which the agency

records are situated, has jurisdiction to enjoin

the agency from withholding ageney records

and to order the production of any ageney rec-

ords improperly withheld from the complain-

ant.

. * * * *

(b) This section does not apply to matters

that are—

* * * * *

(2) related solely to the internal per-

sonnel rules and practices of an agency;

(6) personnel and medical files and

similar files the disclosure of which would

constitute a clearly unwarranted invasion

of personal privacy ;

. o * *

STATEMENT

This is a suit under the Freedom of Information

Act, 5 U.S.C. 552, to compel disclosure of sum-

maries of Air Foree Academy Honor and Ethies

Code cases. The Air Force Academy Honor Code

states: "We will not lie, steal, or cheat, nor tolerate

among us anyone who does.’’ The Code is administered

through a Cadet Honor Committee, composed of

cadets, which conducts hearings for cadets accused of

Honor Code violations. The Honor Committee’s “Pro-

cedures for Honor Hearing”’ state: ‘‘ * * * all matters

discussed at the hearing are confidential and should not

he discussed * * * with anyone other than an Honor Rep-

resentative [a cadet selected by his fellows to admin-

ister the Code].” (App. 105, 147, 165.)'

The Cadet Honor Committee summarizes the sig-

nificant facts of each case in detailed written case

summaries which are distributed “for official use only”

Within the Academy to Honor Representatives and

others charged with administration of the Code, on a

“need to know’’ basis. Similarly, the Ethies Commit-

tee at the Academy, composed of cadets, administers

the Ethies Code and conducts Ethies Code hearings

for cadets which are similarly confidential. The Ethics

Code case summaries are also distributed solely within

the Academy “for official use only.”’ (App. 46, 164-165,

208, 215, 226, 234, 245, 252.)

Plaintiffs in this suit were law students seeking dis-

closure of the case summaries, with the names of

cadets deleted, to use “in the form of footnotes for

*“App.” refers to the joint appendix in the court of appeals,

a copy of which is being lodged with the Clerk of this Court.

illustration” in a law review note on disciplinary

procedures at the military academies (App. 212, 215).

The case summaries will also be maintained for public

inspection in the library of the New York University

Law School (letter of plaintiffs’ counsel to court of

appeals concerning mootness, J anuary 7, 1974). During

lengthy interviews with plaintiff Rose, Academy offi-

cials gave him the Honor Code, the Honor Reference

Manual, Lesson Plans, Honor Hearing Procedures,

and various other materials explaining the Honor and

Ethies Codes (App. 207, 211, 214, 224). They denied

access to the case summaries, however, because the

summaries are so detailed that, even with the names

deleted, “[s]ome cases may he recognized by the reader

hy the circumstances alone without the identity of the

cadet given” and “[t]here is no way of determining

just how these facts will or could be used” (App. 35,

lla).

The Superintendent of the Air Force Academy, the

Commandant of Cadets and the Commandant’s Exeecu-

tive for Honor and Ethies each filed in the district

court affidavits stating that cadets who had been the

subjects of Code hearings could be damaged for the

balance of their lives if a reader connected the incident

described in the case summary with a particular cadet

(App. 35, 21la, 238, 244). See Rose, A Prayer for

Relief, p. 106, n. 631 (New York University Law

School, 1973).

The United States District Court for the Southern

District of New York held that the case summaries

are exempt from mandatory disclosure under exemp-

tion 2 of the Act, 5 U.S.C. 552(b) (2), as “matters that

are * * * related solely to the internal personnel rules

and practices of an agency” (App. C, infra, pp. 33A-

359A). On appeal, the appellees urged affirmance on

that ground, and also reiterated their contention, re-

jected by the district court (App. C, infra, pp. 29A-

32A), that the case summaries are exempt from dis-

closure under exemption 6 of the Act, 5 U.S.C. 552 (b)

(6), as “personnel and medical files and similar files

the disclosure of which would constitute a clearly un-

warranted invasion of personal privacy.’

A divided court of appeals reversed. The court

held that the case summaries are not covered by

exemption 2 because they “have a substantial potential

for public interest outside the Government” and “have

great impact on the lives and careers of subject

cadets” and therefore are different “from matters

of daily routine like working hours, which, in the

words of Exemption Two, do relate ‘solely to the in-

ternal personnel rules and practices of an agency’

[Emphasis added.]” (App. A, infra, pp. TA-8A).

The court recognized that the case summaries are

‘“personnel’’ or “similar” files within the meaning

of exemption 6, and that “identification of disciplined

cadets—a_ possible consequence of even anonymous

disclosure—could expose the formerly accused men

to lifelong embarrassment, perhaps disgrace, as well

as practical disabilities, such as loss of employment

or friends” (App. A, infra, pp. 1OA-13A). But the

court held that exemption 6 was inapplicable to the

case summaries in view of its “narrow” reading of the

exemption, and the need to “compromise between indi-

vidual rights ‘and the preservation of public rights

NN —_—_—

to government information’ ” (App. A, infra, pp. 5A-

9A, 15A).

Since the appellees had failed to “carry thf{e] bur-

den” of establishing the applicability of exemption 6,

the court required the Academy to “produce the

summaries themselves in court” for in camera inspec-

tion. The court stated that it is “highly likely that

the combined skills of court and Agency, applied to

the summaries, will yield edited documents suffi-

cient * * * to safeguard affected persons in their

legitimate claims of privacy,” by deleting names and

“personal references and all other identifying infor-

mation” (App. A, infra, pp. 14A-15A).°

Judge Moore dissented on the ground that the

- majority decision overrode the specific prohibition of

exciuption 6 by allowing plaintiffs to “pry into and

seek to disclose the former transgressions of Air

Force cadets,” at a “time when the courts are more

and more being called upon to protect an individual’s

character from being unnecessarily besmirched”’ (App.

A, infra, pp. I8A-19A). Judge Moore also noted:

“Deletion of names suggested by the majority would

be of no avail. In addition to hames, identifiable facts

would have to be eliminated, Eliminating all determi-

native essentials would only create a hypothetical sit-

uation’ (App. A, infra, p. 22A).

* The court also recognized that courts retain broad equitable

power to decline to order disclosure which would damage the

publie interest, but held that the issue “is not a substantial

one” in the context of exemption 6 “since the language of the

exemption requires a court to exercise a large measure of dis-

creation” (App. A, infra, p. 17A).

51-732—74—_2

REASONS FOR GRANTING THE WRIT

This case presents important and recurring ques-

tions of statutory interpretation involving the scope of

exemptions 6 and 2 of the Freedom of Information

Act. The narrow interpretation that the court of ap-

peals has given to those exemptions authorizes the dis-

closure of highly damaging and derogatory material

in government personnel files. The decision permits

such disclosure on the unsupported assumption that by

excising names and other identifying information the

particular individuals involved in the Air Academy

Honor Code proceedings cannot be identified. The

decision of the court of appeals, if allowed to stand,

will defeat the intention of Congress to protect the

confidentiality of government material which those

two exemptions cover.

1, a. Exemption 6 of the Freedom of Information

Act excepts from the Act's disclosure requirements

“personnel and medical files and similar files the dis-

closure of which would constitute a clearly unwar-

ranted invasion of personal privacy.”” The court of

appeals read this exemption as covering only those

personnel files whose disclosures would constitute “a

clearly unwarranted invasion of personal privacy”

(App. A, infra, pp. LOA, 12A-13A). We submit, how-

ever, that the determination whether disclosure would

constitute such an invasion of personal privacy is re-

quired only in the case of “similar files,” and that once

it is determined that particular files are “personnel”

or “medical,” the judicial inquiry is at an end. In

other words, in exemption 6 Congress itself made the

determination that disclosure of “personnel and medi-

gal files’? would constitute an impermissible invasion

of personal privacy.

The summaries of the Honor and Ethies Code viola-

tions involved in this case are “personnel”’ files. They

relate to conduct by the cadets at the Academy, and

are the basis for disciplinary action such as involun-

tary resignation or expulsion. They are just as much

a part of a cadet’s “personnel” file as the records of

his academic and military performance. As such, they

are protected from disclosure by exemption 6.

Congress did not intend the courts, before applying

exemption 6 to personnel files, to determine whether

disclosure of those files would constitute “a clearly un-

warranted invasion of personal privacy”—an inquiry

which, the court recognized, “involves an essentially

unique investigation into the nature of the privacy

interest invaded and tie extent of the proposed in-

vasion, viewed in the light of contemporary mores

and sensibilities as applied to the particular facts”

(App. A, tufra, p. LOA).

b. The language of the exemption does not compel

the court of appeals’ interpretation of it. To the con-

trary, the more reasonable interpretation is that Con-

gress recognized that personnel and medical files tra-

ditionally contain confidential materia! that should be

protected against disclosure and that other files also

may contain such materia’. It therefore provided for

confidential treatment of other files that meet the non-

disclosure standard that inheres in personnel and

medical files—the protection against disclosure that

would constitute a clearly unwarranted invasion of

personal privacy. Congress certainly did not intend to

subject the millions of government personnel and

medical files to the balancing standards and editing

procedures applied in this case, as a condition to

maintaining their confidential character.

Indeed, in the case of medical files, Congress was

legislating in the light of the well-established privilege

covering the confidentiality of the doctor-patient re-

lationship. If exemption 6 covers only those medical

files that meet the “clearly unwarranted invasion”

standard for nondisclosure, many doctor-patient com-

munications that hitherto have been confidential would

be subject to disclosure. Congress did not intend ex-

emption 6 to have that effect. If the invasion of pri-

vacy requirement that the court of appeals read into

the personnel files portion of exemption 6 is correct,

however, it also would cover the medical files portion

of that provision.

c. The legislative history of exemption 6 confirms

that Congress intended to provide complete protection

for the confidentiality of personnel and medical files

Without requiring the government also to show that

disclosure of material in those files would constitute a

clearly unwarranted invasion of personal privacy. The

report of the House Committee on Government

Operations stated that exemption 6 exeluded from

disclosure ‘‘those kinds of files the disclosure of which

might harm the individual. The exemption is intended

to cover detailed Government records on an individual

which can be identified as applying to that individual

***”" (emphasis added). H. Rep. No. 1497, 89th

Cong., 2d Sess., p. 11. Congress intended that the

Act would not be used to expose the “vast amounts

of personal data’’ collected by the government ‘‘usual-

ly for limited purposes,’’ such as ‘health, welfare,

and selective service records [which] are highly per-

sonal to the person involved * * *,’’ §. Rep. No. 813,

89th Cong., Ist Sess., p. 9. The Senate Committee

stated: “At the same time that a broad philosophy of

‘freedom of information’ is enacted into law, it is

necessary to protect certain equally important rights

of privacy with respect to certain information in Goy-

ernment files, such as medical and persounel files”

(id. at 3; emphasis added).

d. Although, as shown below, permitting disclosure

of the Honor and Ethies Code summaries is likely to

have grave and unfair consequences for a large munu-

ber of Air Force officers and cadets, it is doubtful

whether the decision of the court of appeals could be

limited to that particular group. Rather, the rationale

of the court of appeals’ decision is likely to be applied

to permit disclosure of a wide variety of other govern-

ment personnel files, including those of the ‘Veterans

Administration, Department of Health, Edueation, and

Welfare, Selective Service, ete.” (S. Rep. No. S13,

supra, at 9), which Congress intended to keep confi-

dential when it enacted exemption 6.

2. If, contrary to our submission, the summaries

are not personnel files or if the “clearly unwarranted

invasion of personal privacy’? requirement in exemp-

tion 6 applies to personnel files, the court of appeals

nevertheless improperly required an in camera district

court examination of the summaries to eliminate in-

formation that could result in identifying the cadets

involved in the violations. The court of appeals’ own

analysis of the summaries shows that exemption 6

bars their disclosure. Cf. Environmental Protection

Agency Vv. Mink, 410 U.S. 73, 81, 93-94.

The court of appeals apparently believed that the

harm that might result to the cadets from disclosure

of the summaries could be minimized or eliminated

hy the in camera screening and excision it ordered.

It nevertheless recognized that even this procedure

might not protect the cadets from disclosure of their

involvement in the Code violations—a disclosure that

could have a serious adverse impact upon their sub-

sequent careers, both in the military and elsewhere.

The court stated that ‘identification of disciplined

cadets—a possible consequence of even anonymous dis-

closure—could expose the formerly accused men to

lifelong embarrassment, perhaps disgrace, as well as

practical disabilities, such as loss of employment or

friends” (App. A, infra, p. 138A). As the court noted,

[A] senior officer and ex-cadet might, upon

reading a summary or a reference to it, realize

for the first time that a man under his com-

mand hada@nee been the subject of Academy

discipline. It would be cold comfort to the

junior officer to be told that his chief had

always “known’’ this fact anyway, although he

had long forgotten it or had never made the

ultimate connection among various bits of

knowledge until the article jogged his recol-

lection. [App. A, tnfra, p. 12A.]

Similarly, the court recognized :

[P]ublication of even anonymous summaries

could expose the histories of formerly aecused

cadets to persons other than Air Force officers.

Despite the continuing injunction of secrecy, no

one can guarantee that all those who are “in

the know”’ will hold their tongues, particularly

years later when time may have eroded the

fabric of cadet loyalty [App. A, infra, p. 12A.]

The ineffectiveness of excision of names and other

identifying facts as a means of maintaining the con-

fidentiality of persons named in government reports

and files is strikingly illustrated by the recent case

involving government files relating to Ezra Pound. A

researcher, who had received data connecting Ezra

Pound from the files of the FBI, identified a number

of individuals who had furnished data on Pound to

the Bureau, despite the fact that the names and ad-

dresses of such individuals, as well as other pertinent

identifying data, were deleted from the information

furnished to the researcher in an attempt to “redact”

the files to avoid such identification (see The New

York Times, Book Review Section, p. 47, April 21,

1974; 119 Cong. Ree. 9333-89334 (daily ed., May 30,

1974) ).

The reason that such “editing” of the data is likely

to be ineffective in preserving the anonymity of the

people involved is that where the entire group itself

is relatively small, even a few details may enable peo-

ple familiar with the subject to identify the particular

individuals involved. The number of cadets in the Air

Force Academy at any one time is sufficiently small

that the Honor and Ethics Code summaries, even with

significant deletions, are likely to be sufficiently sug-

gestive and informative to enable those familiar with

the Academy to draw accurate inferences concerning

the identity of the cadets involved in the particular

violations described.

Congress in exemption 6 did not intend to authorize

the courts to require disclosure of files covered by

that exemption on the basis of excision of “personal

references and all other identifying information” in

the files—a process which, by its very nature, cannot

adequately protect the confidentiality that Congress

wished to insure by exemption 6.

The court of appeals stated (App. A, (afra, p. 15A)

that if the deletion of ‘‘personal references and all

other identifying information” is, ‘*in the opinion of

the district judge,” “not sufficient to safeguard pri-

vacy, then the swnmaries should not be disclosed to

appellants.” This statement is inconsistent with the

court’s own view that it is “highly likely” that such

deletion would be adequate to accomplish that objec-

tive—a view reflecting the court’s belief that exemp-

tion 6 constitutes “a workable compromise between

individual rights ‘and the preservation of public rights

to government information’ ” (App. A, imfra, pp.

14A-15A). Despite the court of appeals’ suggestion

that the district court ultimately might decline to

disclose some of the summaries, the practical effect of

its decision will be to permit disclosure of material

that Congress intended to keep confidential pursuant

to procedures that Congress did not contemplate.

The probable result of the court of appeals’ decision

in this case would be a serious violation of the right

of privacy of a large number of cadets at the Air

Force Academy. This case, therefore, implicates an

additional factor bevond the usual Freedom of Infor-

mation Act case, in which the competing considera-

tions are the public interest (1) in obtaining information

about the government and (2) in avoiding dis-

closure that may interfere with the proper function-

ing of government. In exemption 6 of the Freedom of

Information Act, Congress expressly undertook to

protect the constitutional right of privacy (see Roe v.

Wade, 410 U.S. 113, 152). Congress did not intend to

permit the serious invasions of that right which are

likely to be the consequence of the court of appeals’

interpretation of that exemption.’

3. Exemption 2 excepts from disclosure matters

‘related solely to the internal personnel rules and

practices of an agency.”’ The court of appeals ruled

that this exemption was inapplicable here because the

case summaries “‘have a substantial potential for pub-

lic interest outside the Government” (App. A, infra,

p. 8A). The court’s apparent rationale was that be-

cause of that potential the summaries do not relate

“solely” to internal personnel rules and practices

(ibid.). This ruling rests upon a misinterpretation of

exemption 2, and reads into the exemption a qualifi-

“Compare Rural Housing Alliance vy. United States Depart-

ment of Agriculture, 498 F. 2d 73 (C.A.D.C.), where the court

of appeals, in dealing with the category of “similar” files, in-

structed the district court on remand to “reconsider and _ re-

evaluate” a government affidavit which contended that the files

contained personal information so detailed that the privacy of

the named individuals could not be adequately protected by a

deletion process (/d. at 78). In contrast to the Second Circuit's

view that exemption 6 must be given a “narrow” construction

(App. A, ‘nfra, pp. 5A, 9A), the District of Columbia Circuit de-

clared that exemption 6 is “phrased broadly to protect indi-

viduals from a wide range of embarrassing disclosures” (498

F. 2d at 77). The files involved there were statements of and

records concerning persons who had allegedly been discrimi-

nated against by the Farmers Home Administration.

561-732—74—*

cation that Congress did not include and that would

seriously weaken it.

The fact that particular government documents

relating to internal personnel rules and practices may

‘‘have a substantial potential for public interest out-

side the Government” does not change their character

as matters that relate ‘‘solely” to those rules and prac-

tices. There frequently will be substantial public in-

terest in matters that relate “solely” to internal agency

personnel rules and practices. The standard Congress

promulgated to protect the confidentiality of those

rules and practices, however, is whether the matters

sought to be disclosed relate “solely” to them and not

whether there may be a substantial public interest out-

side the government with respect to them.*

The present case illustrates this distinction. The

Honor and Ethics Code summaries are written by

cadets for use by other cadets and Academy officials

in connection with the operation and administration

of the Academy and the maintenance of the voluntary

Honor and Ethies Codes. The codes provide the stand-

ards by which the cadets guide their own conduct

while at the Academy. The Code hearings are confi-

dential—attended solely by cadets and appropriate

Academy officials.

The case summaries thus relate ‘‘solely to the in-

ternal personnel rules and practices”’ of the Academy.

* This analysis equally applies to the court of appeals’ reason-

ing that the case summaries do not relate “solely” to internal per-

sonnel rules and practices for the additional reason that they

“have great impact on the lives and careers of subject cadets”

(App. A, infra, p. 8A).

They involve the discipline, training and fitness of

candidates. They are administered and enforced by

the cadets themselves and exist wholly apart from the

formal system of courts martial and the Uniform Code

of Military Justice (App. 29-30, 144, 147, 164-165,

173, 208, 225, 226, 254).

The character of the Code summaries as matters

that relate solely to the Academy's internal personnel

rules and practices is not altered by the fact that there

may be substantial public interest in the way the

Codes operate. Such public interest also exists with re-

spect to other types of government internal procedures

that the legislative history of exemption 2 shows Con-

gress specifically intended it to cover, such as the

Treasury Department's instructions for the proper

conduct of a “stakeout” or the manuals instructing

auditors of government contractors how to detect

irregularities.” That consideration, however, does not

except such material from the coverage of exemption

2. The unwarrantedly narrow interpretation given to

exemption 2 by the court of appeals in this case would

severely limit the confidentiality of agency documents

Congress intended to protect.

“HL. Rep. No. 1197, 80th Cong., 2d Sess.. p. 10; Hearings be fore

a Subcommittee of the House Committee on Government Oper-

ations, on TLR. 5012, ef a7. (Federal Publie Records Law), 89th

Cong., Ist Sess.. p. 20: 112 Cong. Ree. 13659; City of Concord v.

Ambrose, 335 F. Supp. 958 (N.D. Cal.); Jlawkes v. Jnternal

Revenue Service, 467 F. 2d TST, TH (CA. 6); Cuneo v. Laird,

338 F. Supp. 504 (D.D.C.), reversed on other grounds, 484 F.

Yd 1os6 (CLA.DAC.). certiorari denied sub wom, Rosen v. Vaughn,

415 U.S. 977.

CONCLUSION

The petition for a writ of certiorari should be

granted. APPENDIX A

Respectfully submitted.

Ropert H. Bork,

Solicitor General. United States Court of Appeals For the Second

Carta A. HILLs, Cireuit

Assistant Attorney General. 4

Daxxy J. Bocas, No. 9—September Term, 1973

Assistant to the Solicitor General. | (Argued October 29, 1973 Decided March 29, 1974.)

LEONARD SCHAITMAN, . : : :

Donatp Evra, Docket No. 73-1264

Attorneys.

OctToBER 1974.

| Micuaet T. Rose, Cuartes P. Diamonp, Eprror-1y-

| Cuier, New York University Law Review, Law-

RENCE P. Pepowirz, Former Eprvor-1n-Curer, New

York University Law Review, PLAINTIFFs-

APPELLANTS

against

DEPARTMENT OF THE AiR Force, Ropert S. SEaMENS,

Jr., SECRETARY OF THE AiR Force, LIEUTENANT

GENERAL ALBERT P. Clark, USAF, Superintenp-

ENT OF THE UNITED States Arr Force Acapemy,

BricapieR GENERAL Water T. Gatiicax, USAF,

CoMMANDANT or Capets, Unirep States Arr Force

AcADEMY, Mason Cuartes E. Hart, USAF,

DEFENDANTS-APPELLEES

Before: Moore, Hays, ano Fernpera, Circuit Judges

Appeal from decision of United States District

Court for the Southern District of New York, Lloyd

(1a)

F. MacMahon, J., granting partial summary judg-

ment to defendants in a lawsuit under the Freedom

of Information Act, 5 U.S.C. § 552.

Reversed and remanded.

Barrincton TD. Parker, Jr., New York, N.Y.

(American Civil Liberties Union Foundation: John

H. F. Shattuck, Melvin L. Wulf, Sanford Jay Rosen,

on the brief), for Plaintiffs-A ppellants.

LronaRD ScHAITMAN, Assistant Chief, Appellate

Section, Department of Justice, Washington, D.C.

(Harlington Wood, Jr., Assistant Attorney General ;

Donald Etra, Attorney, Department of Justice; Whit-

ney North Seymour, Jr., United States Attorney for

the Southern District of New York; William R. Bron-

ner, Gerald A. Rosenherg, T. Gorman Reilly, Assist-

ant United States Attorneys, on the brief), for De-

fendants-Appellees.

Femperc, Circuit Judge:

We are faced in this case with construing two of

the exemptions in the Freedom of Information Act

(“the Act”), 5 U.S.C. § 552, one of the many recent

federal statutes that bring new and difficult cases into

the federal courts.’ As is frequently the case with

such legislation, we have little to guide us in the way

of precedent, and the brevity and generality of the

statutory formulations leave much to be decided by

the courts.

Appellant Michael T. Rose, a graduate of the United

States Air Force Academy (“the Academy”) was—

at the time this complaint was filed—a third year

student at the New York University Law School and

* See Associated Indus. of N.Y.S.. Inc. vy. United States

Dept of Labor, 487 F. 2d 342, 344445 & n. 1 (2d Cir. 1973 .

and statutes cited therein.

a member of the Law Review. Together with other

students and members of the Review, Rose has been

conducting a survey of disciplinary systems at various

Service Academies; the study is slated for publication

in a forthcoming issue of the Review.’ In order to

document discussion of the Academy’s Honor and

Kthies Codes, Rose asked the Academy in antumn

1971 to give him copies of case summaries of Honor

and Ethies Code adjudications, which were kept in

the Academy’s files. The Department of the Air Force

refused on the ground that these summaries are ex-

empted from compulsory release by 5 U.S.C. § 552

(b)(6), which permits an agency to withhold certain

information to avoid unwarranted invasion of

privacy.’

After exhausting his administrative remedies, Rose

joined with appellants Charles P. Diamond and

Lawrence B. Pedowitz (who were then, respectively,

the current and former Editor-in-Chief of the Review)

in this lawsuit under the Act to compel disclosure of

the disputed items “with personal references or other

identifying information deleted * * *.? Judge Lloyd

F. MacMahon of the United States District Court for

the Southern District of New York granted appellees

(collectively the Agency) summary judgment on the

issue of the case summaries.’ Although ultimately rul-

*Its tentative title is “The Administrative Adjudicatory

Systems of the Service Academies: Constitutional Powers and

Limitations.”

‘The Air Force also relied on the corresponding Air Force

Regulations, A.F.R. 12-30.4f and 12-30.4g(1)(b), 32 C.F.R.

$806.5 (f). (2) (1) (ii) (1972).

*The district court granted appellants summary judgment

with regard to the third item requested, a con plete study of

resignations by Academy graduates from the Air Force. Ap-

pellees have already complied with this portion of the court's

directive, and thus do not appeal from it.

ing against appellants, the judge agreed with them in

large part. The Agency put forth two grounds in the

district court to support its non-production of the

documents: the Act’s “personal privacy” exemption,

referred to above, and the court’s ‘equitable discre-

tion” to deny disclosure. The judge rejected both argu-

ments. However, he ruled for appellees on a third

ground not advanced by them, that the summaries

were covered by the exemption in 5 U.S.C. § 552(b)

(2) for an agency’s internal rules and practices, At-

tacking the district court’s order refusing them access

to the summaries, appellants prosecute this appeal.

We reverse and remand for further proceedings con-

forming with this opinion.

We begin by stressing that the Freedom of Informa-

tion Act ® was passed in an effort to cure the defects

of former section 3 of the Administrative Procedure

Act (“APA”), 5 U.S.C. § 1002 (1964), which “was

generally recognized as falling far short of its dis-

closure goals and came to be looked upon more as a

withholding statute than a disclosure statute.” ° Courts

have noted that the Act’s remedial purpose was to

pierce the veil of administrative secrecy and to open

agency action to the light of public scrutiny. See, e.g.,

*80 Stat. 250 (1966), codified by 81 Stat. 54 (1967), 5 U.S.C.

§ 552,

®*Environmental Protection Agency v. Mink, 410 U.S. 73, 79

(1973). See also S. Rep. No. 813, 89th Cong., Ist Sess. 3. 4-6

(1965) [hereinafter Senate Rep.]; H.R. Rep. No. 1497, 89th

Cong., 2d Sess. 4-6 (1966) [hereinafter House Rep.]; Attorney

General's Memorandum on the Public Intormation Section of

the Administrative Procedure Act, quoted in 20 Admin. IL.

Rey. 263-316, at 267-68 (1968). See generally Note, The Free-

dom of Information Act: Shredding the Paper Curtain, 47

St. John’s L. Rev. 694 (1973) [hereinafter St. John’s Note).

Haules v. Internal Revenue Service, 467 F. 2d 787,

791 (6th Cir. 1972); Bristol-Myers Co. y. FTC, 424

F. 2d 935, 938, (D.C. Cir.), cert. denied, 400 U.S. 824

(1970). They have accordingly held that exemptions

must be narrowly construed. Vaughn v. Rosen, 484 F.

2d 820, 823 (D.C. Cir. 1973), cert. denied, 42 U.S.L.W.

3020 (U.S. Mareh 19, 1974); Soucie v. David, 448 F.

2d 1067, 1080 (D.C. Cir. 1971). This liberal reading of

the Act’s disclosure provisions is supported not only

by legislative history but, more importantly, by the

statutory language, as well. The Act mandates release

of documents to ‘‘any person”' (subject to explicitly

defined exemptions),* grants to *he district courts

jurisdiction to enjoin improper withholding after a

hearing ‘‘de novo’? in which “the burden is on the

"Former section 3 of the APA, 5 U.S.C. § 1002 (1964).

provided for disclosure only “to persons properly and directly

concerned.” Davis, The Information Act: A Preliminary Analy-

sis, 34 U. Chi. L. Rev. 761, 765 (1967) [hereinafter Davis].

*5 U.S.C, §552(b) lists the exemptions from compulsory

disclosure. It states: “This section does not apply to matters

that are—(1) specifically required by Executive order to be

kept secret in the interest of the national defense or foreign

policy; (2) related solely to the internal personnel rules and

practices of an agency; (3) specifically exempted from disclosure

by statute; (4) trade secrets and commercial or financial infor-

mation obtained from a person and privileged or confidential;

(5) 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; (6) personnel and medi-

eal files and similar files the disclosure of which would con-

stitute a clearly unwarranted invasion of personal privacy;

(7) investigatory files compiled for law e1ffercement purposes

except to the extent available by law to a party other than an

agency; (8) contained in or related to examination, operating,

or condition reports prepared by, on behalf of, or for the

use of an agency responsible for the regulation or supervision

of financial institutions; or (9) geological and geophysical in-

formation and data, including maps, concerning wells.”

561-732—74—_4

agency to sustain its action,” 5 U.S.C. § 552(a) (3) ;

and further calls for disclosure “except as specifically

stated in this section.” 5 U.S.C. §552(e) (emphasis

added).° With this background in mind, we turn to a

discussion of the applicability of Exemption Two, 5

U.S.C. § 552(b) (2), the provision thought by the dis-

trict court to support the Agency’s refusal to turn

over the contested summaries to appellants.

As already indicated, until the district court ruled

none of the appellees had thought to rely on Exemp-

tion Two in refusing to turn over the case summaries.

That section of the Act, see note 9 supra, shields from

required disclosure all ‘‘matters that are * * * re-

lated solely to the internal personnel rules and prac-

°5 U.S.C. $552(a)(3) reads as follows: “Except with re-

spect to the records made available under paragraphs (1) and

(2) of this subsection, each agency, on request for identifiable

records made in accordance with published rules stating the

time, place, fees to the extent authorized by statute, and proced-

ure to be followed, shall make the records promptly available

to any person. On complaint, the district court of the United

States in the district in which the complainant resides, or has

his principal place of business, or in which the agency records

are situated, has jurisdiction to enjoin the agency from with-

holding agency records and to order the production of any

agency records improperly withheld from the complainant. In

such a case the court shall determine the matter de novo and

the burden is on the agency to sustain its action. In the event

of noncompliance with the order of the court, the district court

may punish for contempt the responsible employee, and in the

case of a uniformed service, the responsible member. Except

as to causes the court considers of greater importance, proceed-

ings before the district court, as authorized by this paragraph.

take precedence on the docket over all other causes and shall

be assigned for hearing and expedited in every way.” 5 U.S.C.

$ 552(c) provides: “This section does not authorize withholding

of information or limit the availability of records to the public,

except as specifically stated in this action. This section is not

authority to withhold information from Congress.”

tices of an agency * * * .’? In some instances, the

scope of the exemption may he open to considerable

doubt since the Senate and House Reports diametri-

cally clash.” The former cites as examples of excluded

material ‘‘rules as to personnel’s use of parking facili-

ties or regulation of lunch hours, statements of policy

as to sick leave, and the like.’’ Senate Rep. 8. The

latter, on the other hand, exempts from disclosure

“[o]perating rules, guidelines, and manuals of pro-

cedure for Government investigators or examiners”

but not “‘matters of internal management such as

employee relations and working conditions and rou-

tine administrative procedures * * *.’’? House Rep.

10. The Senate Report is thought by many to comply

with the statutory language better than the House

Report, whose thrust is most frequently toward non-

disclosure." This court has not yet taken a firm stand

on the issne Cf. Frankel v. SEC, 460 F. 2d 813, 816

& 5, cert. denied, 409 U.S. 889 (1972): Polymers,

Ine. v. NLRB, 414 F. 2d 999, 1006 (1969), cert. denied,

396 U.S. 1010 (1970). We conclude, however, that the

difference of approach between the House and Senate

Reports would not affect the result here.

If we adopt the Senate construction of Exemption

Two, case summaries of Honor and Ethies Code

adjudications clearly fall outside its ambit. Such sum-

* See generally Project, Federal Administrative Law Devel-

opments—1972, Developments Under the Freedom of Informa-

tion Act—1972, 1973 Duke L.J. 178, 187-89 [hereinafter Duke

Project]; St. John’s Note 716-17; Davis 785-86.

" Davis 762-63, 785-86; St. John’s Note 697. See Hawkes v.

Internal Revenue Service, 467 F. 2d 787, 794 (6th Cir. 1972).

pointing out, inter alia, that the Senate Report furnishes the

surer guide to congressional intent since it alone was before

both Houses (the Senate passed the bill first); Getman v.

NEIRB, 450 F. 2d 670, 673 n.8 (D.C. Cir. 1971), and cases cited

therein.

maries have a substantial potential for public interest

outside the Government. Appellants have drawn our

attention to various items such as newspaper ex-

cerpts, a press conference by an Academy officer and

a White House Press Release, which illustrate the

extent of general concern with the working of the

Cadet Honor Code. As the press conference and the

Press Release show, some of the interest has been

generated—or at least enhanced—hy acts of the Gov-

ernment itself. Of course, even without such official

encouragement, there would be interest in the treat-

ment of cadets, whose education is publicly financed

and who furnish a good portion of the country’s

future military leadership. Indeed, all sectors of our

society, including the cadets themselves, have a stake

in the fairness of any system that leads, in many

instances, to the forced resignation of some cadets.

The very study involved in this ease bears additional

witness to the degree of professional and academic

interest in the Academy’s student-run system of dis-

cipline. Moreover, as we later describe in greater de-

tail, see Part ITT infra, the case summaries themselves

have great impact on the lives and careers of subject

cadets. Both of these factors—the legitimate public

interest and the future effect on cadets—differentiate

the summaries from matters of daily routine like

working hours, which, in the words of Exemption

Two, do relate “‘solely to the internal personnel rules

and practices of an agency.” [Emphasis added.]

Similarly, even the House Report, which is usually

more ageney-oriented, does not sanction withholding

the summaries. As we have already noted, the House

Report in this respect seems to permit greater dis-

closure of “matters of internal management,” except

where knowledge of administrative procedures might

help outsiders to circumvent regulations or stand-

ards.” Release of the summaries, which constitute

quasi-legal records, poses no such danger to the effec-

tive operation of the Codes at the Academy.

Speculating about a different kind of threat to the

effectiveness of the Code, the Agency claims that pub-

lication of this material might gravely undermine the

whole basis of the Honor Code system, whose proceed-

ings are cloaked in confidentiality. The matter of con-

fidentiality is further discussed in Part III infra. It

is enough here to point out that appellants have

sought only ‘‘sanitized” versions of the ease summar-

ies with names ‘‘or other identifying information” re-

moved. In response to the redaction point, the Agency

argues “that there is no way in which the total success

of the deletion process can be guaranteed” and that

“the functioning of the Honor and Ethics Codes

would be seriously impaired even if inadvertent dis-

closure is a mere possibility.” " But “total success’’—

in editing, as in anything else—is an impossible stand-

ard and surely not one imposed by a statute based

upon a general philosophy of full agency disclosure to

the public. Given this policy, as well as the injunc-

tion to construe exceptions to the Act strictly, 5

U.S.C. § 552(¢), we think it clear that the Agency's

withholding of the case summaries (as edited to pre-

serve anonymity) cannot be upheld by reliance on the

second exemption.

*? See, e.g.. Tietze v. Richardson, 342 F. Supp. 610 (S.D. Tex.

1972) (Social Security claims processing guidelines): Cuno v.

Laird, 338 F. Supp. 504 (D. D.C. 1972) (“play-book” parts of

contract audit manual), remanded sub nom. Cunco vy. Schlvs-

inger, 484 F. 2d 1086 (D.C. Cir. 1973): Concord vy. Ambrose.

333 F. Supp. 958, 960 (N.D. Cal 1971) (law enforcement agent

training manual) (dictum).

** Appellees’ brief at 26 & n.9.

10a

III

The Agency also argues that the summaries sought

by appellants fall within the purview of Exemption

Six of the Act, 5 U.S.C. §552(b)(6), which covers

**personnel and medical files and similar files the

disclosure of which would constitute a clearly un-

warranted invasion of personal privacy * * *.”’ As

already indicated, Judge MacMahon did not agree

with appellees on this point, but they renew their

argument in this court. On its face, Exemption Six ap-

pears relevant; we are dealing here with ‘‘personnel’’

or ‘‘similar files.” But the key words, of course, are

‘a clearly unwarranted invasion of personal privacy,”’

a wholly conclusory phrase, which requires a court

to apply the statutory standard without any definite

cuidelines. Under these circumstances, precedent lends

only marginal aid. Each case involves an essentially

unique investigation into the nature of the privacy

interest invaded and the extent of the proposed inva-

sion, viewed in the light of contemporary mores and

sensibilities as applied to the particular facts.

The data pertinent to our inquiry coneern the char-

acteristics and use of the Honor and Ethics Code

case summaries. These, the Agency tells us, are ex-

tracts of the significant facts in each case heard by

the Honor Committee and in some important cases

heard by the Ethics Committee. (The Ethics pro-

gram is administered more informally.) As a matter

of custom and procedure, information regarding such

cases is required to be held in the strictest confidence.

The summaries are, however, posted in the forty

squadrens and, upon their official release, Honor Rep-

resentatives are permitted to discuss any feature of

the cases with the eadets for their education. The

documents are also distributed to Academy personnel

rtd

11a

who have a “need to know.” (In not guilty or so-called

“discretion” ”* cases the name of the accused is de-

leted; in guilty cases it is not.) Therefore, in practice,

the curtain of confidentiality appears to shield these

records from the glare of external publicity but not

from the eyes of present cadets—and future ones, who

can read the summaries of past proceedings in the

Honor and Ethies Code reading files.

These being the facts, one might ask in what way

release of the summaries—with names omitted—could

increase the potential for invading the privacy of af-

fected cadets. To be sure, some cases might be recog-

nized by readers of the Law Review article even in the

absence of names, by virtue of the circumstances alone.

However, it can be argued, only current and former

cadets and Academy official possess the frame of ref-

erence which would enable them to reconstruct the

incidents described in the summaries, for only they

had access to these records originally. Under these

conditions, one might conclude that disclosure of the

summaries poses no greater threat to privacy than

the Academy itself countenanced through limited dis-

tribution and official posting of the items, and that it

therefore constitutes no ‘‘invasion” at all. This reason-

ing was substantially the basis of the district court

rmvling that Exemption Six did not bar disclosure.

This approach, however, ignores certain practical

realities. First, a person’s privacy may be as effective-

ly infringed by reviving dormant memories as_ by

“The Honor Reference Handbook of the Air Force Cadet

Wing states that, by vote of six out of eight Honor Repre-

sentatives, a cadet may be found guilty with discretion and

returned to the Wing in good standing. A discretion vote indi-

cates a “conviction that the man has learned a lifelong lesson

and that he will thereafter uphold the ethical standards of

the Wing.” Honor Reference Handbook 44 (1970).

12a

imparting new information.” Cf. Prosser on Torts

827-28 (4th ed. 1971). For example, a senior officer

and ex-cadet might, upon reading a summary or a

reference to it, realize for the first time that a man

under his command had once been the subject of

Academy discipline. It would be cold comfort to the

junior officer to be told that his chief had always

“known” this fact anyway, although he had long for-

gotten it or had never made the ultimate connection

among various bits of knowledge until the article

jogged his recollection.

Then, too, publication of even anonymous sum-

maries could expose the histories of formerly accused

cadets to persons other than Air Force officers. De-

spite the continuing injunction of secrecy, no one can

guarantee that all those who are “in the know” will

hold their tongues, particularly years later when time

may have eroded the fabric of cadet loyalty. Finally,

we must remember that none of the parties to this law-

suit is committed first and foremost to the interests of

affected cadets. It is no slur on appellees to note that

they are primarily defending the integrity of their own

procedures while appellants, of course, are pressing

for disclosure. In these circumstances, we will not hold

that the Agency’s internal dissemination of the sum-

maries lessens the concerned cadets’ right to privacy,

as embodied in Exemption Six.

However, while release of even nameless case his-

tories might constitute an “invasion” of protected

interests, the inquiry does not end there. The statute

* But ef. A.F.R. 12-30.¢(2) (a), 32 C.FLR. § 806.5(@) (2):

“In determining whether the release of information would result

in a clearly unwarranted invasion of privacy, consideration

should be given, in cases such as those involving alleged mis-

conduct, to: (i) The amount of time that has passed since the

alleged misconduct * * *,”

13a

requires the Agency to show that the invasion is “un-

warranted’’—indeed, that it is “clearly” so. The only

opinion at all in point, Getman v. NLRB, 450 F. 2d

670 (D.C, Cir. 1971), held that law professors engaged

in an NLRB voting study could compel that agency

to provide them with names and addresses of eligible

employee voters since disclosure would not entail an

impermissible intrusion into privacy."* But Getman

was a much stronger case for plaintiffs than ours since

release of the desired information would subject the

employees named to nothing more than a telephone

request to submit to a voluntary interview. 450 F. 2d

at 674-75. Here, by contrast, identification of dis-

ciplined cadets—a possible consequence of even anony-

mous disclosure—could expose the formerly accused

men to lifelong embarrassment, perhaps disgrace, as

well as practical disabilities, such as loss of employ-

ment or friends. Viewing this potential for serious

harm from the perspective of our society’s expanding

concern for the protection of privacy, ef. Roe v. Wade,

410 U.S. 113 (1973), we refuse to hold that appellees

must now, without any prior inspection by a court,

turn over the summaries to appellants with only the

proper names removed. Such a procedure—posing, as

it does, grave risks to the reputations of affected

cadets—might “constitute a clearly unwarranted in-

vasion of personal privacy.”’ 5 U.S.C. § 552(b) (6).

In order to keep faith with the Act’s overall man-

date, however, we equally decline to hold at this time

** See Note, Invasion of Privacy and the Freedom of Informa-

tion Act: Getman v. NLRB. 40 Geo. Wash. L. Rev. 527 (1972).

We have found only three other appellate decisions dealing with

Exemption Six, only one of which—fobles v. Environmental

Protection Agency, 484 F. 2d 843 (4th Cir. 1973)—reaches the

merits of the claim. Cf. Acher7y v. Ley, 420 F. 2d 1336 (D.C.

Cir. 1969): T'uchinsky v. Selective Serv. Sys., 418 F. 2d 155

(7th Cir. 1969).

144

that Exemption Six Covers all, or any part of, the >

summaries in issue. Rather, we follow appellants’ al-

ternative suggestion and remand with instructions to

the district court to conduct an in camera inspection

of the Honor and Ethies Code case histories, which it

has never examined. Hawkes v. Internal Revenue

Service, 467 F. 2d 787 (6th Cir. 1972): Soucie v.

David, 448 F. 2d 1067 (D.C. Cir. 1971) : Bristol-Myers

Co. v. FTC, 424 F. 2d 935 (D.C. Cir.), cert. denied,

400 U.S. 824 (1970). Under 5 U.S.C. § 552(a) (3), see

note 9 supra, the “‘burden” was on the Ageney ‘‘to

sustain its action” in failing to make the ease sum-

maries available. Having failed to carry that burden

of justification under Exemption Six in the trial court

by means of affidavits or testimony, the Agency must

now produce the summaries themselves in court. En-

vironmental Protection Agency v. Mink, 410 U.S. 73,

93 (1973), and cooperate with the judge in redacting

the records so as to delete personal references and all

other identifying information. Cf. 5 U.S.C. § 552(a)

(2).° The practice of furnishing abstracts of eases,

while preserving anonymity, is not unknown to the

law." We think it highly likely that the eombined

skills of court and Agency, applied to the summaries,”

will vield edited documents sufficient for the purpose

sought and sufficient as well to safeguard affected

persons in their legitimate claims of privacy.”

* This section, which requires, inter alia. publication of final

opinions, statements of policy and administrative staff man-

uals, contemplates agency deletion of identifying details “[t]o

the extent required to prevent a clearly unwarranted invasion

of personal privacy * * *.”

** See, e.g.. Revenue Rulings collected in Cum. Bull. of the

IRS: ABA, Opinions on Professional Ethies (1967).

* Tt was estimated at oral argument that there were 100-200

summaries.

* Cf. House Rep. 11: “The exemption [six] is * * * intended

15a

We cannot close this section of the opinion without

one further comment. We have read our brother

Moore’s dissent with a sense of wonderment, since it

states that we place our “stamp of approval upon’”’

an “egregious invasion of constitutional rights of

privacy.’’ We, of course, do no such thing. We have

fused to hold, in the third paragraph before this

that the Agency is required, without any prior

jon by a court, to turn over thé summaries to

addition, weave stated immediately above that per-

sonal referenceNgnd all other identifying information

om the case summaries. If, in

the opinion of the distyjct judge, this is not sufficient

to safeguard privacy, th®xthe summaries should not

be disclosed to appellants. \Qbviously, the problem

would be a A if the Freedom of Information

Act did not exist or ifthe only interest to be consid-

ered were that of the cadets. But construing Exemp-

tion Six is a much more vomplex process than is

indicated by the dissent which fails to refer to the

legislative history of the Act, the poliey behind it or

the cases construing it. In any event, we believe that

the in camera procedure required here will further

the statutory goal of Exemption Six: a workable com-

promise between individual rights “and the preserva-

tion of public rights to government information.”

House Rep. 11."

to cover detailed Government records on an individual which

can be identified as applying to that individual and not the

facts concerning the award of a pension or benefit or the com-

pilation of unidentified statistical information from personal

records, [Emphasis added. }

** Moreover, despite the dissent’s gloomy prediction, we do

not envision a need for dozens of hours of hard labor by judi-

cial and military officers. On the contrary, once agreement is

reached on general principles of reduction, the actual process of

editing the summaries should not take undue amounts of time.

16a

As a final point, the Agency contends that the courts

have a broad equitable power to decline to order re-

lease when disclosure would damage the public inter-

est, and urges that we exercise this jurisdiction to

withhold the summaries completely. Judge MacMahon

rejected this argument, holding that Congress did not

leave to the courts a general option of refusing to en-

force the Act’s requirement of disclosure even though

no statutory exemption applies.

Much ink has been spilled on this issue, both by

courts and commentators, and we are told that the

legislative history is indeterminate ” and that the ap-

pellate decisions are divided.” We are not sure how

real the conflict is in most instances, since even the

courts that are cited as opposing the notion of general

equity power to refuse disclosure recognize that a

truly exceptional case might require it. Tennessean

*? Compare House Rep. 9 with Senate Rep. 3.

* Thus, Duke Project 178-79 n.9 states that the Fourth,

Sixth and D.C. Circuits reject the idea of a general equitable

jurisdiction and the Fifth and Ninth Circuits support it. Com-

pare Robles vy. Environmental Protection Agency, 484 F. 2d

843, 847 (4th Cir. 1973); Tennessean Newspapers, Inc. vy. Fed-

eral Housing Administration, 464 F. 2d 657, 661-62 (6th Cir.

1972); Hawkes v. Internal Revenue Service, 467 F. 2d 787, 792

n.6 (6th Cir. 1972); Wellford v. Hardin, 444 F. 2d 21, 24-25

(4th Cir. 1971); Getman v. NLRB, 450 F. 2d 670, 677-80

(D.C. Cir. 1971); Soucie v. David, 448 F. 2d 1067, 1076-77

(D.C. Cir. 1971), with Wu v. National Endowment for Human-

ities, 460 F. 2d 1030, 1034 (Sth Cir. 1972), cert. denied, 410

U.S. 926 (1973); Benson v. General Serv. Administration, 415

F. 2d 878 (9th Cir. 1969). But ef. Epstein v. Resor, 421 F. 2d

930, 933 (9th Cir.), cert. denied, 398 U.S. 965 (1970) (limited

role of courts under the first and third exemptions). Prof.

Davis also believes in the existence of equitable power to refuse

disclosure. Davis 767.

Met

174

Newspapers, Inc. v. Federal Housing Administration,

464 F. 2d 657, 662 (6th Cir. 1972); Soucie v. David,

448 F. 2d 1067, 1077 (D.C. Cir. 1971). It may be that

the true controversy is over the definition of an excep-

tional case, since we are clear that generally the Act

constrains the use of broad judicial discretion to block

disclosure. Cf. Renegotiation Board vy. Banncreraft

Clothing Co., 42 U.S.L.W. 4203, 4206-09 (U.S. Feb.

19, 1974) (dictum—broad equitable power to enforce

the Act). In any event, in the context of Exemption

Six the issue is not a substantial one, since the lan-

guage of the exemption requires a court to exercise

a large measure of discretion. This was pointed out by

the Court of Appeals for the District of Columbia, a

court frequently cited for the view that the federal

courts have no general equitable jurisdiction to refuse

disclosure when no exemption applies:

Any diseretionary balancing of competing in-

terests will necessarily be inconsistent with the

purpose of the Act to give agencies. and courts

as well, definitive guidelines in setting informa-

tion policies * * *. But Exemption (6), by its

explicit language, calls for such balaneing and

must therefore be viewed as an exception to the

general thrust of the Act. S. Rep. at 9, explains:

“The phrase ‘clearly unwarranted inva-

sion of personal privacy’ enuneciates a

wlicy that will involve a balancing of

interests between the protection of an

individual’s private affairs from unneces-

sary public serutiny, and the preserva-

tion of the public’s right to governmental

information. The application of this

policy should lend itself particularly to

those Government agencies where per-

sons are required to submit vast amounts

of personal data usually for limited pur-

poses. * * #99

184

We note in passing that no other exemption

specifically requires balancing. In view of the

Act’s basic purpose to limit discretion and en-

courage disclosure, we believe that Kxemption

(6) should be treated as unique, and that equit-

able discretion should not be imported into any

of the other exemptions * * *.

Getman v. NLRB, 450 F. 2d 670, 674 n. 10 (1971).

We have already decided that disclosure of the case

summaries would not be ‘‘a clearly unwarranted in-

vasion of personal privacy’’ under Exemption Six, if

the summaries are redacted as set forth above. We

agree with the court in Getman that no further hal-

ancing is necessary.”

Accordingly, we reverse and remand for further

proceedings, consistent with this opinion and expe-

dited pursuant to the command of 5 U.S.C. § 552

(a)(3).

Moore, Circuit Judge (dissenting) :

T must express a most vigorous dissent to the

majority’s judicial stamp of approval upon the egre-

gious invasion of constitutional rights of privacy

which their opinion authorizes. At a time when the

courts are more and more being called upon to protect

an individual’s character from being unnecessarily

hbesmirched, when much is being said and written

about prison rehabilitation, I am amazed that any

court should eountenance—much less authorize—the

curiosity satisfying efforts of three law school stu-

dents who, merely to write a Law Review note, would

** While this case was under advisement. we asked the parties

to brief the question of mootness, in view of the possibility

that publication of plaintiffs’ article would moot the issue. In

their response, both sides affirmed their belief that the matter

of disclosure of the case summaries was still properly before

us. We agreed with this conclusion and therefore proceeded to

consider the case on the merits.

19a

pry into and seek to disclose the former transgres-

sions of Air Force cadets. This is not a case in which

the courts can attempt to justify their interposition

on the theory that Congress has failed to act and that,

therefore, the courts must legislate. Here there is a

definite statute of prohibition which the majority now

overrides.

When an Air Force cadet is accused of lying, steal-

ing or cheating at the Academy, he is protected by the

greatest possible confidentiality. This may arise in part

from the fact that this charge has been made possible

by the principle of toleration which in grammar

schoolyard parlance means “tattletale” or as phrased

in the record as “The backbone of the Honor Code is

the toleration clause which requires that every cadet

report any suspected violation of the Code’? (App.

120). Thus, not only must the cadet be protected but

also the non-tolerator (tattler).

The hearings, as would he expected, are as sacro-

sanet as are (or should be) jury room proceedings,

namely, “all matters discussed at the hearing are con-

fidential and should not be discussed outside the room

with anyone other than an Honor Representative”

(App. 164-65). The summaries of each case are kept

confidentially restricted except in a small area.

In Passing the Freedom of Information Act, 5

U.S.C. § 552, Congress carefully and specifically ex-

eluded from publie gaze:

**(6) personnel and medical files and similar

files the disclosure of which would constitute a

clearly unwarranted invasion of personal

privacy ;”

If doctor-patient files are protected, how much the

more should files dealing with quasi-criminal or pos-

sible character-hbesmirching facts be kept secret. The

disclosure of disease, be it venereal or mental, can be

20a

remedied or cured. The drawing of a bar sinister

across the escutcheon of a young man entering upon

his life’s career, cannot be erased.

The Air Force officials, mindful of their duty to pro-

tect their cadets, responded in a manner which should

have received the highest judicial commendation in-

stead of disapproval. The Academy’s Honor and

Ethics Executive, in rejecting plaintiffs’ request for

the case summaries, stated:

214

“The Air Force Academy will be unable to

provide you sample ethics cases. The sample

ethics cases used in the Honor Code Reading

File are designated *For Official Use Only’. It is

intended that these cases will be used for the

edification of the Cadet Wing and Academy

staff only. Indiscriminate release of this infor-

mation to persons without a need to know could

he counter to the best interest of the individuals

concerned and the Air Force Academy.”

**T regret that Academy policy requires denial When the request reached the Office of the Secre-

a . . a 7 . - — ° bd » ’ _ *s* °

of public access to honor case files, including tary of the Air Force, the futility of any attempted

selected ones in the Honor Code Reading Files. deletion was pointed out in the statement (App. 35):

All of these cases are documented as ‘For Offi-

cial Use Only’ and are disseminated for internal

use only to the Honor Representatives and those

few staff personnel who have a continuing need to

understand the working of the Cadet Honor

Code. It would be in poor faith with all cadets

who have met honor hearings to allow their

cases to come into the public eye. To permit the

use of honor cases for such purpose would tend

to set a precedent that may operate to the detri-

ment of innocent persons.

“To be accused or found guilty of an honor

violation is an emotionally trying experience

that should, in due respect for the rights of the

individual concerned, be as limited as possible.

Society in general does not understand the dif-

ference in the lying, cheating and stealing that

constitutes a Cadet Honor violation as opposed

to the degree of criminality required in society

at large to cause an equally serious type of cen-

sor [sic: censure]. The problems of such mis-

understanding and the unnecessary embarrass-

ment that could result seems to exceed the value

to be gained from making the case files available

to the public.”’

In denying the request, the Commandant of Cadets

stated (App. 30):

‘‘A release of the honor hearing cases and

ethics cases would constitute an unwarranted

invasion into the privacy of former cadets of

the Academy. Some cases may be recognized by

the reader by the circumstances alone without

the identity of the cadet given. This being the

‘ase then the reader could easily connect the

incident with the particular cadet involved.

Additionally, they are internal documents which

are not meant for mass circulation. They are

stamped ‘For Official Use Only’ and are

afforded subseribed routing and handling pro-

cedures.”’

The reasons for confidentiality and non-disclosure

cannot be better summarized than by the Comman-

dant’s Executive for Honor and Ethics, who stated:

“There is no way of determining just how

these facts will or could be used. This data

could find its way to the relatives, friends and

classmates of cadets and supply the missing link

in disclosing the identity of a guilty cadet. No

person who has made a mistake and_ been

punished should have to have this mistake fol-

low him for the rest of his life.’’

}

OT Yay

224

And, indeed, merely to satisfy the desire of plain-

tiff to write a Law Review note, no court should aid

and abet a project which could result in having a

eadet’s ‘‘mistake follow him for the rest of his life.”

(App. 211a).

Deletion of names suggested by the majority would

be of no avail. In addition to names, identifiable facts

would have to be eliminated. Eliminating all determi-

native essentials would only create a hypothetical

situation.

As the Commandant of Cadets so logically ex-

plained:

“The use of these case files or write-ups, even

if the identity of the individual were not given,

could still be an invasion of privacy as the in-

cident may have been so notorious that the

reader would immediately recognize the cadet

who was the subject of the Honor or Ethics

Hearing. In certain instances, the Cadet Wing

has given the Honor Committee the prerogative

to grant discretion to a cadet who has been

voted guilty and to allow him to return to the

Cadet Wing. The man who has learned his life-

long lesson of honor can be a great asset to the

Wing and to the Air Force. His retention is

therefore not only justified; it is desired... .

Therefore, every effort is made to avoid dis-

closure of the cadet’s name so that he may

return to the Wing unblemished to continue his

education.”

The majority recognize that their decision even with

anonymous disclosure ‘‘could expose the formerly ac-

cused men to lifelong embarrassment, perhaps dis-

grace, as well as practical disabilities, such as loss of

employment or friends.” These accused cadets are the

real parties in interest; yet, as the majority concedes,

**none of the parties to this lawsuit is committed first

and foremost to the interests of affected cadets.” Even

the unborn child is in many situations entitled to his

23A

(or her) guardian ad litem and Gideon*® was deemed

to be entitled to be heard through counsel. But ac-

cused cadets are to be subjected to possible lifelong

disgrace or loss of employment without any spokes-

man.

Of course, Congress never intended any such result.

Nor does the Act so decree. Lest any implication to

this effect might be gleaned therefrom, Congress wrote

therein a specific prohibition against an “unwarranted

invasion of personal privacy.”

Consider briefly the majority’s suggested protection

against ‘‘this potential for serious harm”. First, the

Air Force must remove from all case summaries, esti-

mated in open court as involving one hundred to two

hundred summaries, all proper names. Then these

nameless but not factless summaries are to be turned

over to the District Court. There the majority are

sure that “the combined skills of court and Agency,

* * * will yield edited documents * * * sufficient * * *

to safeguard affected persons in their legitimate

claims of privacy.” But for what purpose and at what

cost? The purpose is clear, i.e., to have the Air Force

and the District Court co-author a student contribu-

tion to a legal periodical. ‘Time cost is another matter.

Assuming only one hundred and fifty summaries, vital

name excision should be capable of accomplishment in

ten minutes per summary—an inconsequential twenty-

five hours. However, careful Court editing to eliminate

identifying facts would be much more time-consuming.

Seventy-five hours of Court time would be conserva-

tive. In these days when there is so much clamor about

the desirability of speedy trials, I am unwilling to

subscribe to, or acquiesce in, any opinion which sad-

dles such a needless burden upon an important branch

of our military forces and, in my opinion, an equally

important judicial branch. Hence, I dissent.

25 (fideon v. Wainwright, 272 U.S. 335 (1965).

APPENDIX B

United States Court of Appeals, Second Cireuit

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the 29th day of May, one thousand nine hundred

and seventy-four.

MicuaeL T. Rose, Cuaries P. DiamMonp, Eprror-

IN-CHIEF, New York Uyiversiry Law ReEvIEw,

LawreENceE B. Pepowrrz, Former Epitor-1N-CHIer,

New York University Law REVIEW, PLAINTIFFS-

APPELLANTS

v’.

DEPARTMEN? OF THE AIR Force, Rosert C. Skamens,

Jn., SECRETARY OF THE Atr Forcr, LievTENANT GEx-

FERAL ALBERT P. Clark, USAF, ScrERINTENDENT OF

THE Unirep States Arr Force ACADEMY, BriGADIER

GENERAL. WALTER T. GaLiicay, USAF, Comman-

DANT OF Capers, Unirep Starrs Arr Force

AcAaDEMY, Mason Cuaries E. Hart, USAF,

DEFENDANTS-APPELLEES

Docket No. 73-1264

A petition for rehearing containing a suggestion

that the action be reheard in bane having been filed

herein by counsel for the appellees, a poll of the judges

in regular active service having been taken and there

heing no majority in favor thereof.

Upon consideration thereof, it is ordered that said

petition be and it hereby is denied.

Trvinc R. Kavrman, —

Chief Judge.

(244)

254

United States Court of Appeals

Second Cireuit

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the 29th day of May, one thousand nine hundred

and seventy-four.

Present: Hon. Leonard P. Moore, Hon. Paul R.

Hays, Hon. Wilfred Feinberg, Circuit Judges.

Micuagr T. Rose, Cuartes P. Dramonp, Eprror-1x-

Curr, New York University Law ReEviEw, Law-

RENCE B. Penowrtz, FORMER Eprror-tN-CHier, NEW

York University Law REVIEW, PLAINTIFFS-APPEL-

LANTS

’.

DEPARTMENT OF THE Air Force, Ropert C. SEAMENS,

Jr., SECRETARY OF THE ATR Force, Lrevtenant GEN-

ERAL Anpert P. Crark, USAF, SuPERINTENDENT OF

THE Unrrep Stares Arr Force Acapewy, BriGaprer

GENERAL Warrer T. GainiGgaxn, USAF, Comnan-

pANT oF Capets, Unitrep States Amr Forck ACADEMY,

Masor Cuartes FE. Hart, USAF, DEFENDANTS-AP-

PELLEES

Docket No 73-1264

A petition for a rehearing having heen filed herein

by counsei for the appellees, . .

Upon consideration thereof, it is Ordered that said

petition he and hereby is denied.

A. DANIEL Frsaro,

Clerk.

APPENDIX C

United States District Court Southern District of

New York

72 Civ. 1605-LFM

MicHaet T. Rose eT Al., PLAINTIFFS

against

DEPARTMENT OF THE AiR Force ET AL., DEFENDANTS

Memorardum

MacManon, District Judge.

These cross-motions for summary judgement are

brought under the public information section of the

Administrative Procedure Act,’ commonly known as

the Freedom of Information Act of 1966 (“the Act’’).

Plaintiffs seek to compel the defendants to produce

certain documents and information generated in the

United States Air Force Academy (“the Academy”)

pertaining to its disciplinary procedures, Section 3 of

the Act places upon defendants the burden of justify-

ing their refusal to produce documents or information

sought pursuant to the Act and provides for a de

nove evaluation by this court of the propriety of that

refusal. ,

The items of information sought are: (1) case sum-

maries of Honor Code adjudications collected in the

Academy’s Honor Code reading files, with personal

references or other identifying information deleted ;

(2) case summaries of Ethics Code adjudications

(264)

Q27A

maintained in the Academy’s Ethics Code reading

files, with personal references or other identifying in-

formation deleted; and (3) a complete copy of a study

of resignations from the Air Force by Academy grad-

uates made by the Academy’s alumni secretary.’

Plaintiffs, members and a former member of the

law review of New York University Law School, seck

this information for use in documenting a study of

disciplinary procedures at the nation’s service acade-

mies. Plaintiff Rose, a graduate of the Academy and

a first lieutenant in the Air Force, requested and was

denied access to all items listed above for such use.

The grounds stated for the denial were that the ma-

terials sought were exempt from disclosure under Air

Force regulations and federal law.’

The Honor Code is a synonym for the manner in

which each cadet at the Academy voluntarily agrees

to conduct himself: “We will not lie, steal or cheat,

nor tolerate among us anyone who does.’”’ All four

aspects of the cadet Honor Code are punishable under

formal military law.‘ The procedures of the Code,

however, provide an informal system of military jus-

tice that must be utilized before any other sanctions

may be invoked. The Code may completely dispose of

? Since the institution of this suit, the Air Force has re-

leased to plaintiffs the statistical portion of item (3): the

comments offered by the graduates are still withheld.

*The case summaries are allegedly exempt from disclosure

under Air Force Regulations 12-50, 4f and 4g(1)(b) and 5

U.S.C. $552(b) (5) and (6).

* Specific articles of the UCM which could apply vary with

the circumstances, but include Articles 80, 92, 107, 121, 122,

123, 135, and 134.

284

cases and, therefore, obviate the need to resort to

formal military law.

Ethies cases involve some conduct indicating a lack

of moral character and yet not constituting an Honor

Code violation, ¢.g., the writing of a bad check.’

Plaintiffs contend that they have a right, pursuant

to 5 U.S.C. § 552(a) (3), to inspect and copy the Honor

* The Code is administered by a board of eight cadets, known

as “the Honor Committee.” Suspected violations of the Code

are referred to the Chairman of the Honor Conmittee. He ap-

points a three-cadet investigatory team which, with advice

from the legal advisor, evaluates the facts and determines

whether a hearing before the Honor Committee is warranted.

If the team finds no hearing warranted, the case is closed. If

it finds there should be a hearing, each squadron may send two

cadets to observe and the accused cadet may call witnesses to

testify in his behalf.

The Honor Committee may reach a finding of guilty only

upon an unanimous vote. If the verdict is guilty, the board

may, under certain circumstances, grant the guilty cadet “dis-

cretion” for which a vote of 6 to 2 is required. A verdict of

guilty without discretion results in three alternatives: the cadet

may resign from the Academy, request a hearing before a

Board of Officers. or request a trial by court-martial. A verdict

of guilty with discretion is equivalent to a not guilty finding

in that the cadet is returned to the cadet population in good

standing.

At the announcement of the verdict. the Honor Chairman

reminds all cadets present at the hearing that all matters dis-

cussed at the hearing are confidential and should not be

discussed outside the room with anyone other than an Honor

Representative. In not guilty or diseretion cases, case summaries

are written up with the name of the cadet deleted and posted

on bulletin boards throughout the Academy. However, cadets

are instructed not to read them unless the, have a need, bevond

mere curiosity, to know their contents. In guilty cases, official

dissemination to the cadets is made after the guilty eadet has

departed and his name is not deleted.

* Confidentiality of Ethics cases is established by custom and

practice rather than by written rule. The procedures for han-

dling Ethies cases are comparatively unstructured. Ino many

29a

and Ethics Codes case summaries (“case summaries’’).

That statute requires that:

[Elach agency, on request for identifiable

records * * * shall make the records promptly

available to any person. On complaint, the dis-

trict 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. In

such a case the court shall determine the matter

de novo and the burden is on the agency to

sustain its action.’

The government argues preliminarily that the

Honor Committee and presumably the Ethics Com-

mittee (which administer the respective Codes ) are

not agencies within the intendment of the Act. We

disagree. A branch of the armed services is an agency

for the purposes of the Act.” The identification of

Honor Code memoranda as “official Air Force ree-

ords” by the Air Force’s form of attestation of

authenticity * demonstrates that the records belong to

the Air Foree and not to the Honor Committee.

The government’s primary defense to the demands

instances, Ethics cases are handled informally by the Cadet

Squadron Commander, the Squadron Ethies Representative, and

the individual concerned. These cases are not necessarily written

up and no complete file is maintained. A case is written up and

placed in back of the Honor Code reading file only when it is

determined to be of velue for the Cadet population. For our

purposes here, references to the Honor Code or Code will

include the Ethies Code.

75 U.S.C. § 552(a) (3). ;

* Epstein v. Resor, 421 F. 2d 950 (9th Cur), cert. denied,

398 U.S. 965 (1970).

° These official printed forms, complete with blue ribbon and

gold seal, cover a number of Air Force documents submitted

in support of the government's motion.

30a

for the case summaries is the sixth of nine exemptions

to the Act:

(b) This section does not apply to matters

that are—

* * * * +

(6) personnel and medical files and similar

files the disclosure of which would constitute a

clearly unwarranted invasion of personal pri-

vacy * © °=

Plaintiffs respond that their request is for the case

summaries “with personal references or other identi-

fying information deleted.”” Revelation of a set of

facts absent some type of association with a person's

name seems to us incapable of invading anyone’s per-

sonal privacy." It is only the identifying connection

*S TS.C. $552(b) (6). The government contends that the

“information is both embarrassing and personal to the in-

dividual concerned and that the Air Foree had a duty to

respect, to the greatest extent possible. the rights of privacy of

its personnel.” Affidavit of Major Richard R. Lee. faculty

member of the Academy, at page 2. The government then cites

as relevant legislative history: “Such agencies as the Veterans’

Administration, Department of Health. Education and Welfare.

Selective Service, and Burean of Prisons have great quan-

tities of files containing intimate details about millions of

citizens * * *. The limitation of a ‘clearly unwarranted inva-

sion of personal privacy’ provides a proper balance between

the protection of an individnal’s right of privacy and the

preservation of the public's right to Government information

by excluding those kinds of files the disclosure of which might

harm the individual.” H.R. Rep. No. 1497. 89th Cong., 2d Sess.

11 (1966) (“H. Rep.*). The government stresses that since

privacy is the “crucial” property of the Code. an adverse de-

termination here would put the future of the Code in a

“dubious” position as well as constitute a clearly unwarranted

invasion of personal privacy.

"See. Geiman v. National Labor Relations Bd.. 430 F. 2d

670 (D.C. Cir. 1971). The very section of the Honse Report

cited by the government, which noted that this exemption was

31a

to the individual that casts the personnel, medical and

similar files within the protection of sixth exemption.

The Act and courts following the Act, therefore, per-

mit deletions of exempted portions of documents but

then order the remainder to be released.”

The government argues that even with deletions,

disclosure is an unwarranted invasion of personal

privacy because:

[T]here will be those, who, * * * may have

considerable knowledge about a particular Code

violation; perusal of the article * * * may well

* * * provide the factual quantum necessary to

identify a particular person as the one in-

volved * * *, This would destroy the utility of

the device of “discretion,” the second chance

with a clean slate.”

The government ignores, however, that the Honor

Code precludes publication of any case summaries out-

side the Academy community. While it is possible that

a reader, in conjunction with facts learned long since

cadet days, might successfully conjecture about an

intended to cover “files containing intimate details about mil-

lions of citizens,” goes on to state: “The exemption is also in-

tended to cover detailed Government records en an individual

which can be identified as applying to that individual and not

the facts concerning the award of a pension or benefit or the

compilation of unidentified statistical information from per-

sonal records.” H. Rep. at 11. The corresponding Senate Report

makes the point even more clearly: “[IT]ealth, welfare, and

selective service records are highly personal to the person in-

volved, yet facts concerning the award of a pension or benefit

should be disclosed to the public.” S. Rep. No. 815, 89th Cong.,

Ist Sess. 7 (1965) (“S. Rep.”).

#25 U.S.C. § 552(a) (2): “To the extent required to prevent a

clearly unwarranted invasion of personal privacy, an agency

may delete identifying details * * *.” F.g., Wel/ford v. Hardin,

315 F. Supp. 768 (D. D.C. 1970); see, Getman vy. National

Labor Relations Bd., supra.

** Government's reply memorandum, at p. 8.

32a

identity if he had not learned it when he was at the

Academy, no one can be harmed. This hypothetical

reader, necessarily once a cadet, has subscribed to the

nature and workings of the Honor Code, including the

philosophy of discretion. Even if ‘‘society” deems case

summaries to be of a quasi criminal nature, no stigma

could attach to a former cadet because no one outside

the cadet/former cadet universe could possibly connect

a name with a case.

Thus, we find that disclosure of the summaries with-

out names or other identifying information is not an

invasion of personal privacy, as proscribed by the

sixth exemption.”

The government next argues that we follow Con-

sumers Union of U.WS., Ine. vy. Veterans Administra-

tion,” “according to traditional equity principles” to

“weigh the effects of disclosure and non-disclosure and

determine the best course to follow at the present

time.” This mandate of the district court in Consumers

is rejected by the Courts of Appeals and is contra-

dictory to the language of the statute. One court

stated:

Since judicial use of traditional equitable

principles to prevent disclosure would upset this

this legislative resolution of conflicting inter-

ests, we are persuaded that Congress 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."*

“Tt is unnecessary for us to proceed to the second step of

the exemption of balancing the advantages to the public of dis-

closure with the disadvantages to the individual of intrusion

because we have found that there could be no intrusion.

"301 F. Supp. 796, 806 (S.D.N.Y. 1969), appeal dismissed

as moot, 456 F, 2d 1363 (2d Cir. 1971).

*Soucie v. David, 448 F. 2d 1067, 1077 (D.C. Cir. 1971).

Nee also, Wellford vy. Hardin, supra; Getman vy. National Labor

Relations Bd., supra,

334

Section 552(c) of the Act states:

This section does not authorize withholding

of information or limit the availability of ree-

ords to the public, except as specifically stated

in this section.”

The equitable discretion issue was neither briefed

nor argued by either side in Consumers, and oypor-

tunity for a full review on the point was foreclosed

when the appeal was dismissed as moot.” In any

event, we are convineed that it is inappropriate to

use equitable power to weigh the effects of disclosure

and nondisclosure.” .

Despite the failure of the two grounds discussed

above to support the Air Force’s attempt to keep

from disclosing the case summaries, there exists a

third potential basis not mentioned by either side

which demands our consideration. The second exemp-

tion to the Act covers matters that are ‘‘related solely

to the internal personnel rules and practices” of the

agency.” The general frame of operation of the Honor

and Ethics Codes, including the production of the case

summaries, seems to fit into that category on its face.

We, therefore, must examine whether such placement

is consonant with congressional intent.

The Senate Report on the Act stated:

Exemption No. 2 relates only to the internal

personnel rules and practices of an agency.

Examples of these may be rules as to person-

nel’s use of parking facilities or regulation of

lunch hours, statements of poliey as to sick

leave and the like.”

175 U.S.C. $552(c) [emphasis added].

18 Getman vy. National Labor Relations Bd. supra, 450 F, 2d

at 678 n. 25.

Td, at 674 n. 10.

25 U.S.C. $ 552(b) (2).

2S. Rep. at 8. A portion of the House Report would seem

to exclude “employee relations and working conditions” from

-BEST COPY AVALLAgy

344

The examples of “personnel rules’? in the report indi-

cates a policy of non-disclosure of information which

does not materially affect the public. By definition,

these rules are meant to control only those people in

the agency. The administrative difficulties from publi-

cation outweigh any possible benefit from disclosure.

The operation of the Honor Code cannot possibly

affect anyone outside its sphere of voluntary partici-

pation which is limited by its function and its publi-

cation to the Academy. While the Code is more

substantial than parking facilities or lunch hours, the

principle of affecting only those in the agency is the

same, The examples in the report are illustrative, not

limitary, and consequently do not restrict the exemp-

the exemption. We reject this interpretation because it is not in

accord with the expressed words of the statute. Moreover, the

Senate Report is the surer indication of congressional intent

because it was available for consideration in both houses while

the House Report was available in only one. Benson v. General

Services Administration, 289 F, Supp. 590 (D.D.C. 1968), aff'd,

415 F. 2d 878 (9th Cir. 1969).

Commentary on another portion of the House Report which

expands the exemption to include operating rules is helpful,

however, in that it points to the guideline we employ here in

applying this exemption. “ ‘Operating rules’ may be ‘internal

personnel rules’ only to the extent that they deal witi the

relations between an agency and an outsider or between em-

ployees of the agency and an outsider.” Davis, The Informa-

tion Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761,

785-786 (1967). Significantly for our purposes, the commenta-

tor warns that routine administrative procedures must be dis-

closed “if they affect anyone outside the agency.” Jd

** Even former cadets and former officers, as members of the

public. cannot be affected by the case summaries due to the

confidential nature of the Honor Code System. See notes 5

and 6 and text thereat.

ee ee

35A

tion beyond the principle that documents exempted

do not materially affect the public.” .

We hold, therefore, that the Honor and Ethics

Codes comprise rules and practices of the Air Force

that affect only those within the Academy. Hence, the

records of those proceedings, including the demanded

case summaries, are exempt from mandatory disclo-

sure under 5 U.S.C. § 552(b) (2).

The third item of information sought in this action

is a complete study of resignations by Academy grad-

uates. In view of the government’s voluntary dis-

closure of the statistical half of this survey, we need

only pass upon the half containing comments by

Academy graduates.

The government maintains that the comments por-

tion of the study is exempt from disclosure under the

terms of the fifth exemption from the Act. It relieves

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.”

Plaintiffs contend that this study already has been

offered for dissemination to the public and, thus, the

government has waived its rights under this exemp-

tion. We agree. Lieutenant General Albert P. Clark,

the Superintendent of the Air Force Academy, stated

that:

28 This interpretation is not foreclosed by the policy of con-

struing exemptions narrowly. We can find no more narrow

interpretation that would still permit the exemption to be

viable. Protection from overly broad use of the exemption

devives from the word “solely” in the statute, which narrows

down the exemption to insure disclosure to the public of all

information that may affect it. Here it is obvious that the Code

exists “solely” to regulate the cadets.

*5 U.S.C. § 552(b) (5).

364

As a matter of fact the information [the study]

has not been released to graduates or to the

publie for over a year.

It is uncontested that the complete survey was offered

to all graduates at one time. Plaintiff Rose received

a form letter, dated September 29, 1969, addressed to

‘* All graduates’’ from the Academy offering the study

to anyone who would ‘“‘merely drop us a line.’’ This

letter from Captain Metcalf, author of the study, did

not restrict the use of the study despite the assertion

by Metcalf in his affidavit that the policy had been

not to permit the use of the study in published re-

ports. The entire relevant portion of the letter is set

out in the margin.”

The government does not deny that the study was

offered for publie dissemination. In its reply brief,

it contends that the studies originally were made

available to all graduates as a matter of interest. In

mid-1971, that policy was changed apparently be-

cause of a request for the study by a graduate in

order to write an article for a national magazine.

In view of Lieutenant General Clark’s attestation,

it is inescapable that the study had in fact heen dis-

tributed to at least some members of the public.

Further, the admitted offer of release was not re-

stricted to graduates still serving in the Air Force.

Consequently, it is likely that the material remains

available from sources other than the agency. Because

of the other sourees, the denial of disclosure here

“5. The above discussion is only a short summary of the

study that was published in May, 1969. If you wish a copy of

the complete survey, merely drop us a line and we'll send one

along. If you have any personal comments on the subject of

graduate resignations, I wowld be very pleased to receive them.

I would be particularly interested in your thoughts concerning

actions Hq USAF can initiate that would directly address the

major irritants of a career in the Air Force.”

eee Ae ee Lam nae ke .

374A

would either be ineffective or we would have to en-

join all holders of the study from disclosing it. As

we are powerless to restrain the sources not before

us, there is no effective way to keep the study secret.

The change and subsequent enforcement of the Air

Foree’s policy regarding release of the study cannot

undo the consequences of unrestricted publications. All

reasons for exempting intra-agenev communications

from disclosure fail when that communication already

has been deliberately released by the agency to the

public. The study is no longer only an intra-agency

matter. It is a matter of public record. A Maritime

Subsidy Board intra-agency memorandum lost its

status as such when it was reproduced in part in a

letter sent outside the ageney.”

We therefore find that the voluntary disclosure of

the studies amounts to a waiver of the right to be pro-

tected by the fifth exemption.” Consequently, the ex-

emption from disclosure claimed by the government

must be denied.

26 4{merican Mail Line. Ltd. vy. Gulick, 411 F.2d 696, 703 (D.

D.C. 1969). We cannot be sympathetic to a litigant because his

timing with the barn door is off: the horse needs only to be

let go once to be gone forever.

27 Because the Air Force waived the study's status as an intra-

agency memorandum, we need not reach the second criterion

of the fifth exemption: the discoverability of the study as to a

litigant other than an agency. We do note, however, that the

publication would not adversely affect a litigant’s discovery

rights. A discoverer is not barred from discovery on matters

that are within his own mind, within the knowledge of the

general public or accessible to him. /’nited States v. Beatrice

Foods Co.. 52 F.R.D. 14 (D. Minn. 1971): Baim & Blank, Tne.

v. Phileo Distrib... Inc. 25 F.R.D. 86 (E.D.N.Y. 1957): 4

J. Moore, Federal Practice € 26.59 (1972). Whether or not the

publication itself overcomes any claim of privilege lodged by

the government under the discovery rules, thus making the in-

formation “discoverable” even had it not been so before, is a

most interesting but unnecessary question for us here.

38A

Accordingly, the government’s motion for summary

judgment is granted insofar as it exempts the Honor

and Ethies Codes ease summaries from disclosure and

is denied in all other respects. Plaintiffs’ cross-motion

for summary judgment is granted insofar as it seeks

to require the Air Force io disclose the complete study

on graduate resignation with comments and is denied

in all other respects.

Settle order on notice within fifteen (15) days.

Dated: New York, N.Y., December 19, 1972.

Luoyp F. MacManon,

United States District Judge.

APPENDIX D

United States Court of Appeals for the Second Circuit

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

twenty-ninth day of March one thousand nine hundred

and seventy-four.

Present: Hon. Leonard P. Moore, Hon. Paul R. Hays,

Hon. Wilfred Feinberg, Circuit Judges

MicuHaeEL. T. Rose, CuHartes P. Diamonp, Eprror-in-

Curer, New York University Law Review,

LAWRENCE B. PeEpowitz, Former Eprtor-1N-CHIer,

New York University Law Review, PLAtNtires-

APPELLANTS,

DEPARTMENT OF THE AR Force, Ropert C. SEAMENS,

Jr., SECRETARY OF THE AiR Force, LievreENANT

GENERAL ALBERT P. CLARK, USAF, SuPERINTENDENT

OF THE UnNrrep Stares Arm Force AcApemy,

Bricapier GENERAL Water T. GALLicaAn, USAF,

COMMANDANT OF Capets, Unrtrep States Arm Force

AcapeMy, Major Cuarves FE. Harr, USAF, De-

FENDANTS—A PPELLEES.

73-1264

Appeal from the United States District Court for

the Southern District of New York

(39a)

40a

This cause came on to be heard on the transeript

of record from the United States District Court for

the Southern District of New York, and was argued

by counsel.

On consideration whereof, it is now hereby ordered,

adjudged, and decreed that the order and judgment of

said District Court be and they hereby are reversed

and that the action be and it hereby is remanded to

said District Court for further proceedings consistent

with the opinion of this court with costs to be taxed

against the appellees.

A. DANIEL F usaRo,

Clerk.

By Vriycent A. CaRLIn,

Chief Deputy Clerk.

U.S. GOVERNMENT PRINTING OFFICE: 1974

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.