Amicus Curiae Brief — EPA v. Mink

a a alee Ce oe ee

Supreme Court of the Hnited States

Ocroser Term, 1971 :

No. 71-909 é

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ENVIRONMENTAL Protection AGENCY, et al.,

Petitioners, .

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Patsy T. Mink, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR

CONSUMERS UNION OF UNITED STATES, INC.,

AMICUS CURIAE

KarpaTKIN, OHRENSTEIN & KarpaTKIN

Attorneys for Amicus Curiae

1345 Avenue of the Americas

New York, New York 10019 ©

Of Counsel:

Marvin M. Karpatkin

Micuaret N. Poiuetr

PIR . :

SER Fo em sn ama y ere ce asnceNER oR me Rey S eg ce Rs nese aeaacos |

ARLE NRE EL AI oN ak) SARA DURE AON, BOOP NORE NC

INDEX

Interest of Amicus

ARGUMENT:

Post I—

The Freedom of Information Act Requires That in

Each De Novo Proceeding Under the Act, the Dis-

trict Court Be Satisfied That Agency Invocation

of One of the Act’s Exemptions Is Correct; This Is

So Even if It Is Necessary for the Court to Con-

duct an /n Camera Examination of the Documents

in Order to Determine Whether the Privilege as

Claimed Actually Exists 4

A. Blanket Classification of Materials Does Not

of Itself Satisfy the Requirements of Exemp-

tion One. The Burden Is Therefore on the

E.P.A. to Demonstrate Exemption of Each

Particular Unit of Information Sought by Re-

spondents 5

B. Factual Materials Do Not by Definition Fall

Within the Explicit Coverage of Exemption

Five. The Burden Is Therefore on the E.P.A.

= to Demonstrate Exemption of the Particular

~ Factual Materials at Issue ..... : 8

PAGE

Point II—

The District Court ls Competent to Conduct an

In Camera Inspection of Documents Claimed to Be

Blanketly Exempt for the Purpose of Separating

Privileged Materials From Non-privileged Materi.

als, and Compelling Disclosure of the Latter... ll

Point ILI—

The Authority of the Courts to Examine Jn

Camera Documents Claimed to Be Privileged

Kither in Whole or in Part, and to Separate Such

Documents Into Privileged and Non-privileged

Portions for the Purpose of Disclosure Under the

Freedom of Information Act Is of Utmost Impor-.

tance to Consumers and to the General Public ...... 14

CoNncLusION li

y - TaBLeE or AUTHORITIES

Cases:

Ackerly v. Lagy, 420-2.2d 1BGG cdnccceccscicctnesovsonsteemncimnicc 4

Boeing Airplane Co. v. Coggeshall, 280 F.2d 654 .......... 8,13

Bristol-Myers Co. v. Federal Trade Commission, 424

Fe DO oc ccoccessikitlnivscilianaiaignamg Restos taeda: 5

Carl Zeiss Stiftung v. V.I.B. Carl Zeiss Jena, 40

BMRA a DN cicsihacivinigeantb hieigiciedipnalon ohicilcaaeo tapi euta desis 9

Consumers Union of United States, Inc. v. Veterans

Administration, 301 F. Supp. 796 ............. cess 2, 8, 10, 15

Consumers Union of United States, Inc. v. Veterans

Administration, S56 FZ LOGB aioocci cn. cccocsecccscsscncan 2

ill

getman v. N.L.R.B., 450 gE REMORSE Se” Sea =e 2, 10

Machin v. Zuckert, 316 F.2d 336, cert. den. 375 U.S.

Ea Re I Tt ARE Se 9, 13

sew York Times Co. v. United States, 403 U.S. 713 ..6, 7, 12

Soucie v. David, 448 F.2d 1067 oes 4, 7, 11, 13, 14

United States v. Lincoln Rochester Trust Co., 297 F.2d

MOL, corks Gams COD IR RT aa coe cccieles 10

United States v. Reynolds, 345 U.S. 1 oes 9

Cnited States v. U.S. District Court for the Eastern

District of Michigan, 40 U.S.L.W. 4767 0002... 7, 12

Wellford wi Hardin, 444 I'.2d 21 eee wcceweseercccccccecccccccccoscecccs 4, 12

Statutes:

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

§ UB.C, $5520) (1) —.2.. 5, 6

De FT UP sccicsonesidsecitnraphdponedininctnncstans 8, 9, 10, 11

a icici peec kc ccrsinsacvnegeces 5

Other Authorities:

1970-71 Annual Report of the Administrative Con-

ference of the United States, 53 sc. ceceseceeee 13, 14

CIE Be a ied entero Ober aad co a 1

27 Consumer Reports 139 (1962) oo. eseeees eee 14

27 Consumer Reports 446 (1962) oo... Scot hephadidih 14

28 Consumer Reports 190 (1963) occ. eessesesececee 14

28 Consumer Reports 448 (1963) occ eeeeeseseseeee 14

oj Consumer Reports 338 (1972) ....2...:....ccccocecccosesoxs 3

See ee 4

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PAGE

Davis, “The Information Act: A’ Preliminary Ap.

alysis,” 34 U. of Chi. L. Rev. 761 (1967) oe 6,9, 16

Exee. Order No. 10501, as amended 3 C.F.R. 299

(1971), 50 U.S.C. § 401 (Supp. 1972) 00

Graham, “The Pentagon Papers Trial: A Major Test

of First Amendment,” New York Times, July 26,

ca Big ARR SHAS SREIRIY UI ve 80 ARG RET eR ae

Nader, “Freedom from Information: The Act and the

Agencies,” 5 Harv. Civ. Rights-Civ. Lib. L. Rev,, 1

Bg: SSO EE ee ab ae.» MOR eee Sa

Sen. Rep. No. 813, 89th Cong., 2d Sess. (1965)

Supreme Court of the United States

Octoser TrrM, 1971

No. 71-909

>

ENvirONMENTAL Protection AceEncy, et al.,

Petitioners,

|

Patsy T. Mink, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

>

BRIEF FOR

CONSUMERS UNION OF UNITED STATES, INC.,

AMICUS CURIAE

a /

Interest of Amicus

Amicus is a non-profit organization, chartered in 1936

pursuant to the Membership Corporations Law of the

State of New York, which performs tests on consumer

products and provides information and advice to the gen-

eral public on goods and sérvices. Amicus publishes and

sells the monthly magazine Consumer Reports, which has

- acurrent circulation in excess of 2,000,000.

In addition to maintaining testing and reporting ser-

_ vices, Consumers Union pursues the following objectives,

which are excerpted from its Certificate of Incorporation,

anl digested in the masthead of each issue of Consumer

Reports:

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_“To provide consumers with information and comy

on consumers goods and services, to give informati,

on all matters relating to the expenditure of the fanj,

income, and to initiate and to cooperate with individ

ual and group efforts seeking to create and maint)

decent living standards.”

As a “leading consumer-oriented investigator of proj.

ucts,” * amicus has a real and continuing interest in obtgip.

ing for its readers and the general public the fullest po.

sible information on the testing, use and quality of varioy

products on the market, much of which can only-be obtaing

from various agencies of the federal government. Whik

the testing services performed by amicus are necessarily

limited by available funds, federal agencies test large nun.

bers of products on a vast scale, gathering much inform.

tion, unavailable elsewhere, which would be of untold ben.

fit to millions of consumers in the United States.

Amicus, therefore, is deeply concerned that the provi.

sions of the Freedom of Information Act, guaranteeing

public access to most agency documents, be broadly co.

strued, and its exemptions be narrowly construed, in a.

cordance with Congress’ intent. Indeed, amicus was the

first to bring suit seeking product testing informatio -

under the Act. See Consumers Union of United State,

Inc. v. Veterans Administration, et al., 301 F. Supp. %

(S.D.N.Y. 1970), appeal dismissed as moot, 436 F.2d 138

(2d Cir. 1971). Additionally, Consumers Union appeared

as amicus curtae in Getman v. NLRB, 450 F.2d 670, 6

? See Consumers Union of United States, Inc. v. Veterans Adm

istration, ct al., 436 F.2d 1363, 1365 (2d Cir. 1971), dismininr

appeal as moot.

QTE PRES a SO

3

n. 25 (D.C. Cir. 1971), a decision which held that courts

have NO equitable jurisdiction under the Freedom of In-

formation Act to deny disclosure on grounds other than

| those specifically set forth in one of the Act’s enumerated

exemptions. See “A Big Footnote in CU v. VA,” 37 Con- |

seer Reports 338 (1972).

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Pa a Lae, w.

WEE Rea MND

Amicus believes that the principles involved in this case

present important questions of law and policy affecting

the consumer’s and the general public’s right to informa-

tion under the Freedom of Information Act. In particular,

it takes issue with the propositions advanced by the En-

vironmental Protection Agency (E.P.A.): that the docu-

menfs in question are exempt from the Freedom of Infor- _/

mation Act, and that the courts are barred from examining

these documents simply because Agency officials in their,

unchecked discretion have labeled them exempt.

E.P.A. misconstrues the issues before this Court. The

Petitioner argues that once an agency official has. marked a

document as classified or as an inter- or intra-agency mem-

orandum, the*federal courts are barred from questioning

the validity of that determination. Any ruling in support

of this proposition, however, would render meaningless

the nine exemptions to the Act specifically enumerated by

Congress, and would allow federal agencies, through con-

venient juxtaposition of validly classified material with

non-classified matter, to bar the entire lot of materials

from court inspection, and thus through classification-by-

association to frustrate the purpose of full disclosure in-

tended by Congress in enacting the Freedom of Information

Act. .

_At issue, rather, is whether the courts may make in

mera inspections of documents claimed to be privileged

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for the purpose of determining whether they are indea

so privileged, either in-whole or in part, and for the pur.

pose of separating privileged materials from the pop.

privileged in order to compel disclosure of the latter g.

cording to the Freedom of Information Act.

ARGUMENT

I.

The Freedom of Information Act Requires That jn

Each De Novo Proceeding Under the Act, the Distric

Court Be Satisfied That Agency Invocation of One of

the Act’s Exemptions Is Correct; This Is So Even if |;

Is Necessary for the Court to Conduct an In Camera kx.

amination of the Documents in Order to Determine

Whether the Privilege as Claimed Actually Exists,

Both the legislative history and the express Janguage

of the Freedom of Information Act compel the conclusion,

already accepted by the courts in Soucie v. David, 48 F.

2d 1067, 1080 (D.C. Cir. 1967), and Wellford v. Hardin,

444 F.2d 21, 25 (4th Cir. 1971), that the Act’s exemptions

are to be narrowly construed. Sen. Rep. No. 813, 89th

Cong. 2d Sess. (1965) specifically asserts that according

to the Act, “all materials of the Government are to be

made available to the public by publication or otherwise,

unless explicitly allowed to be kept secret by one of the

exemptions ...”.

This Senate insistence on a policy of full disclosure ex-

cept in explicitly delimited cases finds authoritative rein-

forcement in the final wording of the Act itself. That

Congress intended to define and restrict the exemptions

Ni id SD REET AE. Pee DS oe TI OY

5

to disclosure is made crystal clear in subsection (¢) of § 552

of the Freedom of Information Act which unambiguously

states: “This section does not authorize withholding of

information or limiting the availability of records to the

ublie; except as specifically stated in this section.” 5

U.S.C. §552(c) (emphasis added). Words like specifically

and explicitly play, of necessity, an important role in the

construction of the Act’s exemptions. In Bristol-Myers Co.

x, Federal Trade Commission, 424 F.2d 935 (D.C. Cir.

1970), the court of appeals noted with displeasure that

the district judge had failed to examine the disputed docu-

ments, “and to explain the specific justification for with-

holding particular items,” (424 F.2d at 938), thus raising

substantial difficulties of interpretation for the appellate

court.

A. Blanket Classification of Materials Does Not of Itself

‘Satisfy the Requirements of Exemption One. The

Burden Is Therefore on the E.P.A. to Demonstrate

Exemption of Each Particular Unit of Information

Sought by Respondents.

Exemption One protects from disclosure “matters .. .

specifically required by Executive order to be kept secret

in the interest of the national defense or foreign policy”

(emphasis added). 5 U.S.C. §552(b)(1). The E.P.A. has

throughout this case relied on Executive Order 10501 as

basis enough for fulfilling the requirements posed by the

word “specifically” in the first exemption. This order,

however, requires blanket classification of documents:

“The document . .. shall bear only one overall classifi-

cation, notwithstanding that pages, paragraphs, sec-

tions or components thereof bear different classifica-

tions.” As amended, 3 C.F.R. 292 (1971), 50 U.S.C.

$401 (Supp. 1972).

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The court of appeals below ordered the district court {,

find just such pages, paragraphs, sections and component;

which the E.P.A. here seeks to protect from disclosure,

and to release those which it deems non-secret and separ.

able from the secret remainder. That such material shoylg

remain undisclosed would clearly be contrary to Congres

intent in enacting the Freedom of Information Act. It has

admittedly not been “specifically required by Exeentiy,

order to be kept secret,” but has been classified “Seere”

by association only. It would be contrary to the mandate

of Congress to broaden Exemption One, as the E.P.A, her

contends must be done. A leading commentator on the

Freedom of Information Act has stated:

“Courts that usually constitute themselves working

partners with legislative bodies to produce sensible

and desirable legislation may follow their accustomed

habits in narrowing the ascertainable meaning of the

words of an exemption, but . . . they are restricted in

following those habits in broadening that meaning”

Davis, “The Information Act: A Preliminary Analy.

sis,” 34 U. of Chi. L. Rev. 761, 783-84 (1967). |

The E.P.A. in its brief to this Court (p. 9) argues that

Congress intended by Exemption One to accord broad re-

spect for the Executive’s decision as to classification.

Broad, however, does not mean unlimited. In New York

Times Co. v. United States, 403 U.S. 713 (1971), this Court

found the government’s claim for “broad respect” and

privilege to be unfounded. In a concurring opinion joined

by Mr. Justice White, Mr. Justice Stewart stated:

“[T]he only effective restraint upon executive policy

and power in the areas of national defense and inter-

Loe ee Pee e eee ; “ 3 2 PRR OL PT NT TERA LAY LA ORR

ras

national affairs may lie in an enlightened citizenry—

in an informed and critical public opinion which alone

can here protect the values of democratic government.”

(403 U.S. at 728).

Though the court need not inspect documents in camera

if * government agencies describe their relevant features

sificiently to satisfy the court that a claim of privilege

is justified, the court must be free to do so, even when the

government asserts that public disclosure would be harm-

ful to the national defense or foreign policy. Soucie v.

David, supra. Soucie involved claims for documents con-

cerning the federal government’s program for the develop-

ment of the S.S.T., clearly a matter of importance both

tonational defense and foreign policy. The court there held

nonetheless that the Freedom of Information Act, by re-

. quiring a trial de novo in which the burden rests on the

government to prove that an appropriate and specific ex-

ecutive order has been made, clearly rejects any hint of

the traditional “deference to administrative determina-

tions” (448 F.2d at 1077).

Each proceeding under the Freedom of Information Act

is required to be de novo “in order that the ultimate deci-

sion as to the propriety of the agency’s action is made by

the court,” and to “prevent it from becoming meaningless

judicial sanctioning of agency discretion.” Sen. Rep. No.

813, supra, p. 8. The danger of leaving such ultimate deci-

sions up to an executive agency has beeti recognized else-

where by this Court, As Mr. Justice Powell stated for

the Court in United States v. U. S. District Court for the

Eastern District of Michigan, 40 U.S.L.W. 4767 (June 19,

1912), “executive discretion may yield too readily to pres-

sures” in seeking to maintain national security. The courts,

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PG IIB DOS 2 MIELE IN LBB PEL PCR E

together with Congress, must act as required by our bg.

ance-of-powers system to offset that executive tendeng

and its concomitant threat to our constitutional scheme of

government.

B. Factual Materials Do Not by Definition Fall Within the

Explicit Coverage of Exemption Five. The Burden Is

Therefore on the E.P.A. to Demonstrate Exemption

of the Particular Factual Materials at Issue.

The E.P.A. argues (Petitioner’s brief, p. 39) that the

fifth exemption was intended by Congress to bar disclosure

of factual as well as nonfactual material in order to guar.

antee frank discussion of policy matters by agency officials,

In light of the strong Congressional purpose to promote

disclosure evidenced by passage of the Freedom of Infor.

mation Act, however, it is clear that factual material was

not intended to fall within the explicit coverage of the

fifth exemption, which protects 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”, 5 U.S.C. § 552(b) (5).

Consumers Union v. Veterans Administration, 301 F. Supp.

at 805. The E.P.A. fails to realize that disclosure of purely

factual material would in no way impinge on the guar.

antee of frank policy-matter discussion. Boeing Airplan

Co. v. Coggeshall, 280 F.2d 654, 661-62 (D.C. Cir. 1960),

The E.P.A.’s argument, furthermore, expands fifth ex.

emption policy to a point dangerously in conflict with the

purpose of the Freedom of Information Act:

“The problem is not the essential soundness of the pol-

icy but the inevitable temptation of a governmental

litigant to give it an expansive interpretation in re-

Dae IER AST RES At WARE AL Pe Boe

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lation to the particular records in issue.” Ackerly v.

Ley, 420 F.2d 1336, 1341 (D.C. Cir. 1969).

Recognizing this problem, the court in Machin v. Zuckert,

916 F.2d 336 (D.C. Cir. 1963), cert. den. 375 U.S. 896

(1963), required the Air Force, despite a claim of privi-

lege, to produce “factual findings” included in a particular

Air Force report dealing with an airplane crash, and con-

taining certain classified information about the plane and

its mission at the time of the crash, because the Air Force

had failed to demonstrate to the court’s satisfaction that

disclosure might be dangerous. Thus, if in a given situa-

tion nondisclosure is crucial as to certain factual materials,

the burden is on the government agency to so demonstrate

to the court. United States v. Reynolds, 345 U.S. 1, 9

(1953); Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena,

4) F.R.D. 318, 331-32 (D.D.C. 1966).

In a desperate attempt to prevail even if the Court

should find that the fifth exemption does permit disclosure

of factual materials, the E.P.A. cites the wording of H.R.

Rep. No. 1497, 89th Cong. 2d Sess. (1965) (Petitioner’s

Brief, p. 11), which states that the only disclosable ma-

terials are those which would routinely be disclosed through

discovery to a private party in litigation with the agency.

Neither Sen. Rep. No. 813, supra, nor the final wording

of the Act itself includes that qualifying word, however.

Indeed, the House Committee only wrote this limitation

and others like it into its report when it was subjected to

outside pressure to restrict the Senate bill (Davis, supra,

at 805); the House actually passed the same bill as the

Senate. Clearly, the wording of the statute itself, passed

by both houses of Congress, must prevail over that of a

RRB RAGA GPT LOLA A ONE NORE PIRI RL ed . ter Sf me

10

committee report from one house which was never yoteg

upon or even considered by the other house. United State;

v. Lincoln Rochester Trust Co., 297 F.2d 891 (2d Cir, 1962),

cert. den, 369 U.S. 887 (1962). Indeed, the district court jp

Consumers Union v. Veterans Administration, supra, jy

choosing between the Senate and House Committee inter.

pretations of the Freedom of Information Act, preferreg

the former, “since its report was before both houses of

Congress . . . is more consistent with the purpose of the

Act and... avoids a possible internal contradiction.” 3p}

F. Supp. at 801. Accord, Getman v. NLRB, supra, at 673

n. 8.

The district court in Consumers Union v. Veterans Ad.

ministration, supra, defined the scope of the fifth exemp.

tion as follows:

“To determine if the requirements of the 5th exemp.

tion are met, this court must ask if the records sought

are inter- or intra-agency memoranda or letters

which would not be available to any party in any liti-

gation in which the agency having the records might

now be involved. The fulcrum of this test is discovery

practices as regulated by the courts, not discovery as

it is practiced by the government. ...” Jd. at 804.

It is respectfully submitted that the documents sought by

Respondents here clearly do not satisfy the above test

which must be met to justify exemption.

oti eds DOT

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Il.

The District Court Is Competent to Conduct an In

Camera Inspection of Documents Claimed to Be Blan-

ketly Exempt for the Purpose of Separating Privileged

Materials From Non-privileged Materials, and Compel-

ling Disclosure of the Latter.

The court of appeals below ordered the district court

on remand to examine the documents in question, looking

to possible separation of them for purposes of disclosure

and nondisclosure. In doing so, it adhered to the rule ex-

pounded in Soucie v. David, supra, that according to the

Freedom of Information Act, “factual information may

be protected only if it is inextricably intertwined with pol-

icy-¢making processes” (448 F.2d at 1077-78). In response,

the E.P.A. proffers before this Court two weak and unper-

suasive arguiaents. First, it maintains (Petitioner’s brief,

p. 29) that a fact-policy distinction as regards Exemption

Five is unsound because fact portions are virtually certain

to be inextricably bound into policy portions. If this were

so in any given case, however, the federal agency involved

would clearly risk nothing by an in camera examination of

the documents; the court, unable to separate, would be un-

able to disclose. |

Secondly, the E.P.A. maintains (Petitioner’s Brief, p.

28) that the federal courts, “are not well-equipped to

make the decisions that the court of appeals has required

the district court to make in this case . . . whether a docu-

ment requires a top secret or secret classification and

whether that classification can safely be removed or

changed.” Though the E.P.A. claims that such decisions

12

both as to documents and as to parts of documents ar

pérogatives peculiarly within the province of the Exegy.

tive, the courts have often recognized that there is no lack

of judicial power or expertise to make that determination,

This Court, for example, by its decision in New Yor}

Times Co. v. United States, supra, determined that it js

appropriate for federal judges to consider whether various

portions of a classified document ought to be released,

More specifically, this Court responded to an argument

very similar to that advanced here by the E.P.A. in Uniteq

States v. U. S. District Court for the Eastern District of

Michigan, supra. Mr. Justice Powell in speaking for the

Court stated:

“We cannot accept the Government’s argument that

internal security matters are too subtle and complex

for judicial evaluation. Courts regularly deal with

the most difficult issues of our society. There is no

reason to believe that federal judges will be insensi.

tive or uncomprehending of the issues involved in do.

mestic security cases... If the threat is too subtle or

complex for our senior law enforcement officers to con-

vey its significance to a court, one may question

whether there is probable cause for surveillance. . ..

The investigation of criminal activity has long in.

volved imparting sensitive information to judicial of-

ficers who have respected the confidentialities involved.

Judges may be counted upon to be especially conscious

of security requirements in national security cases.”

40 U.S.L.W. at 4768,

As regards the Freedom of Information Act specifically,

the Fourth Circuit held in Wellford v. Ilardin, supra, that

0 OY INA

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it is a violation of the Act to withhold a document on the

ound that parts of it are exempt and parts not exempt;

ssnitable deletions” should be made by the court so as to

disclose the nonexempt remainder of the document. See

also Machin v. Zuckert, supra. Similarly, in Soucie v.

David, supra, in discussing a report on government ac-

tivities in relation to the S.S.T., the court stated that in-

spection of the report would enable the district judge on

remand “to delete any privileged matter, so that the re-

mainder may be disclosed in accordance with the policies

of the [Freedom of Information] Act” (448 F.2d at 1079).

In light of these precedents, amicus respectfully submits

that the E-P.A. contention that courts cannot be entrusted

with the task of in camera review here plainly has no basis

in law. It is entirely proper and consistent with the role

of the judiciary under our constitutional system for the

courts to undertake such inspections, “keeping in mind

the issues of the case, the nature and importance of the

interests supporting the claim of privilege, and the fun-

damental policy of free societies that justice is usually

promoted by disclosure rather than secrecy.” Boeing Air-

plane Co. v. Coggeshall, supra, at 662.

Furthermore, the option to itself voluntarily separate

commingled exempt and non-exempt materials always re-

mains open to a federal agency. The Administrative Con-

ference of the United States, entrusted with the power to

adopt recommendations which it considers appropriate for

improving administrative procedures in federal agencies,

has even adopted the following standard as part of its

‘Principles and Guidelines for Implementation of the

Freedom of Information Act”:

o OIE LALO LD Le MLE, Ay BOO TROL AE A PINAL OM

14

“Where a requested file or record contains exempt jp.

formation that the agency wishes to maintain confidep.

tial, it should offer to make available the file or g copy

‘of the record with appropriate deletions if this ey

be done without revealing the exempt information”

1970-71 Annual Report of the Administrative Coy,

_ ference of the United States, at 53.

Ill.

The Authority of the Courts to Examine In Camern

Documents Claimed to Be Privileged Either in Whok

or in Part, and to Separate Such Documents Into Priy.

ileged and Non-privileged Portions for the Purpose of

Disclosure Under the Freedom of Information Act Is of

Utmost Importance to Consumers and to the General

Public.

. The public interest in obtaining information such as that

sought here by petitioners can hardly be denied, “The

publie’s need for information is especially great in the

field of science and technology, for the growth of special-

ized scientific knowledge threatens to outstrip our collec.

tive ability to control its effect on our lives.” Soucie vy,

David, supra, at 1080. To recognize this truth the Court

need only look at a hypothetical situation, one highly simi-

lar to the one at hand. Suppose, after a ‘nuclear test such

as Cannikin, Respondents, or amicus itself,? were to seek

disclosure of agency reports showing the resulting rela-

2 The concern of amicus in this matter is amply demonstrated by

the numerous articles in ConsuMER Reports on the effect of radia-

tion from atomic testing on foods normally included in the human

diet. See 27 ConsumMER Reports 139, 446 (1962); 28 —

Reports 190, 448 (1963).

YOM BE A A Once

15

tive amounts of radioactive matter in various organic food

products.

Clearly, the consuming public would have a valid and,

indeed, urgent interest in attaining disclosure of such re-

ports. Yet the governmental agencies involved could well

advance the same arguments for nondisclosure that the

EP.A. here seeks to assert. That this is not a fanciful sup-

ition is borne out in a recent article in the New York

Times, as follows:

“In the past, the secrecy system has often. been abused

to the point that the military’s purchases of peanut

butter and paint have been known to be classified

confidential.” Graham, “Pentagon Papers Trial: A

Major Test of First Amendment,” New York Times,

July 26, 1972, p. 14.

See also Consumers Union v. Veterans Administration, 301

F, Supp. 796, where the defendant federal agency strenu-

ously opposed the release of hearing aid test scores, hardly

amatter urgently in need of “confidential” classification.

In both the real and the hypothetical cases, because the

Freedom of Information Act was intended to benefit the

public generally, “it is primarily the effect on the public

rather than on the person seeking the records that must

be weighed.” Consumers Union v. Veterans Administra-

tion, 301 F. Supp. at 806.

The courts, furthermore, in weighing the public interest,

must look realistically at the state of administrative com-

pliance with the Act and cooperation with its aims. As

one noted consumer advocate has stated:

tag a 7 : ; ic A

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RENTERS Es

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16

“After three months of exploring the frontiers of th

Freedom of Information policy of several federa)

agencies, ... I have reached a disturbing conclusion.

government officials at all levels in many of they

agencies have systematically and routinely violate

both the purposes and specific provisions of the lay,

These violations have become so regular that they

seriously block citizen understanding and participa.

tion in government. Thus the Act, designed to pro.

vide citizens with tools of disclosure, has been forged

into a shield against citizen access. There is a pre.

vailing, official belief that these federal agencies need

not tolerate searching inquiries or even routine jp.

quiries that appear searching because of their infre.

quency.” Nader, “Freedom from Inforriiation: The

Act and the Agencies,” 5 Harv. Civ. Rights-Civ. Lib,

L. Rev. 1, 12 (1970).

See also Davis, supra, at 805, and at 761, where he points

out that all of the federal agencies opposed passage of

the Freedom of Information Act.

Few consumers or consumer groups can afford to sue

in response to such administrative violations. Unless this

Court clearly and unequivocally affirms the decision of the

court below, administrative recalcitrance in the federal

agencies may well, as described above, frustrate the con-

sumer, both as an individual and as a class, in the rightful

pursuit of government information and may well render

meaningless both the letter and the spirit of the Freedom

of Information Act. )

17

CONCLUSION

The E.P.A. erroneously secks to deny the federal judi-

dary its authority, under the Freedom of Information

Act, to examine in camera materials claimed to be exempt,

and to disclose portions thereof which it deems to be non-

privileged according to the requirements of that Act. It

is respectfully urged that such a denial cannot stand, and :

that this Court should affirm the decision of the Court ‘

of Appeals for the District of Columbia Circuit. 3 ;

Pe. Seo Pastis DID RR, PREP AG ewe St

August, 1972.

Respectfully submitted,

KarPATKIN, OHRENSTEIN & KarPaTKIN

Attorneys for Amicus Curiae*

: 1345 Avenue of the Americas

New York, New York 10019

Of Counsel :

Marvin M. KarpatKIn

MicnaEL N. Pouuet

* Attorneys for amicus curiae gratefully acknowledge the assist-

ance of Mrs. Helen Rosenberg, second year student at New York

University Law School, in the preparation of this brief.