# Amicus Curiae Brief — EPA v. Mink

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0096%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1973
- **Citation:** 410 U.S. 73

## Text

a a alee Ce oe ee

Supreme Court of the Hnited States

Ocroser Term, 1971 :
No. 71-909 é

a

ENVIRONMENTAL Protection AGENCY, et al.,

Petitioners, .
asa, - rene oF

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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iv gt

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).

SOE eerie
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

_— rie -
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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

11

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

13

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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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0096%3A08. Public record. Not legal advice.