Amicus Curiae Brief — Renegotiation Bd. v. Grumman Aircraft Engineering Corp.

chad a a i le MPT ETT DTI NE IONE TA GR PT NAL TTT ENE ET BHT Ot BT TS

IN THE

Supreme Court of the United §

Octoser TERM, 1974

No. 73-1316

<i

THE RENEGOTIATION Boarp,

Petitioner,

—_—vV.——

GRUMMAN AIRCRAFT ENGINEERING CORPORATION,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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BRIEF FOR AMERICAN CIVIL LiBERTIES UNION AND :

CONSUMERS UNION OF UNITED STATES, INC., e

AMICI CURIAE :

Metyvin L. WuLF

Joun H. F. Saatrruck

American Civil Liberties

Union Foundation :

22 East 40th Street ;

New York, New York 10016

CaroL A. CowGILL 4

Consumers Union of &

United States, Ine. 3

1714 Massachusetts Avenue, N.W.

Washington, D. C. 20036

3 CR ae ey ee

Marvin M. KarpatKIn

1345 Avenue of the Americas

New York, New York 10019

Attorneys for Amici Curiae

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INDEX

Page

Interest Of AMICi wecssccccsscccceees Z

Question Presented ............-2200. 3

Statute Involved ........... Serres 4

Statement of the Case Cotes euusee ss ° 4

Introduction and Summary

of Argument ........ errr Trees 7

Argument Prrrrrererrerrrerrrrrrr eee cs we

I. THE REGIONAL BOARD AND DIVISION

REPORTS ARE FINAL OPINIONS SUB-

JECT TO DISCLOSURE UNDER SUBSEC-

TION (a) (2) OF THE ACT eveens, 52

A. Documents on which an agency

relies in reaching a final de-

cision must be disclosed .. ll

B, Regional Board Reports .... 15

od

C. Division Reports eer eT . 26

II. REPORTS WHICH MUST BE DISCLOSED

AS FINAL OPINIONS ARE NOT COV-

ERED BY THE FIFTH EXEMPTION OF

THE ACT Reebeeveanvet nae sees 18

Conclusion coeoeereeee Fee ewcec occ ec ceccce ae -24

Biaasrtsiccvanien we

ii

TABLE OF AUTHORITIES

Cases:

American Mail Lines, Ltd. v. Gulick,

411 F.2d 696

(D.0, Cle, 2969) oven cee avenss sw bd, 14

Boeing Airplane Company v. Coggeshall,

280 F.2d 654

(3.0. Cir. 1960} cuccsvewwevsee 19, 20

Bristol-Myers Company v. FTC,

424 F.2d 935

(DLC. Cit, 1970) ci ctsescscas one LGy 2

Consumers Union v. Veterans Adminis-

tration,

301 F. Supp. 796

(S.D.N.Y. 1969),

appeal dismissed as moot,

436 F.2d 1363

(24. Cir. 1971) .cccccccccsccce ° 3

EEOC v. Los Alamos Constructors,

_,. F. Supp.-__s- 43: ~«L.W. 2169

(D.N.M. October 9, 1974)....... 10

Environmental Protection Agency

v. Mink,

410 U.S. 73

(A973) oevcitodivcerceseseus La, 18, 20, 21

Fein v. United States,

405 U.S. 365 (2972) ccsccssscoes 8

General Service Administration

v. Benson,

415 F.2d 878

(St Cit. EDS) cones eadcessius 14

Getman v. N.L-R-B.,

450 F.2d 670

(Bits Cites TTL oven cavednceuss 3

iii

Hawkes v. Internal Revenue Service,

467 F.2d 787 ,

(GEN Cie, 19i2) ves e ets veeecunces

International Paper Company v. FPC,

1438 F.2d 1349

(24 City 1971) ovrccccsscocsvcece

Joseph v. United States,

405 U.S. 1006 (1972) ...ccccccces

Kaiser Aluminum & Chemical Corp-

oration v. United States,

157 F. Supp. 939

(Cle Che 1956) cpa desuccisesecies

Montrose Chemical Corporation

v. Train,

491 F.2d 63 (D.C. Cir. 1974).... 12,

National Labor Relations Board

v. Sears, Roebuck & Company,

HO. 737-1233. cccwccccccccpccceccce

-Soucie v. David,

448 F.2d 1067 '

(D.C. CLE. 1971) coscccccocscsocs

Sterling Drug, Inc. v. FTC, 450 F.2d

698 (D.C. Cir. 1971).... 10, 13, 14,

Carl Zeiss Stiftung v. V.E.B. Carl

Zeiss, Jena, 40 F.R.D.

318 (D.D.C.), aff'd,

384 F.2d 979

(D.C. Cir. 1966),

cert. denied, 389 U.S.

S52 (2967) cccvesssavvencscesee's’s

Stokes v. Brennan,

476 F. 2d 699

(Sth Cig. 1973) sessocsescesesess 10,

pl rr ct tr resamnrnnnmmnnnn te

i

a ard leche

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ee eee iad eatadinis eaebitibe und daawhhensha SJ9N

iv

Tax Analysts and Advocates v.

Internal Revenue Service,

362 F. Supp. 1298

(D.D.C. 1973) aff'd, |

—. 2-24, s (D.C. Cir.

Auguet 19, 1974) accccccccccsce - 10, 12

Tennessean Newspapers v. FHA,

464 F.2d 657

(Gth Cire 1972) ecccccccsccvcece 11, 22

United States v. Broyles,

423 F.2d 1123

(328 Cir. 1970) .ccccovcccccces ° 8

‘United States v. Holby, .

477 F.2d 649

eo a Pee ek) reer ere oe . 8

United States v. Houghton,

413 F.2d 736

(Sth Cirl 1969) ...ccccccces eseec 8

United States ex rel. Checkman

v. Laird,

469 F.2d 773 (2d Cir. 1972).... 8

Vaughn v. Rosen,

__ F. Supp. ___, (D.D.c.

Oct. 19, 1974), on remand

from 484 F.2d 820 (D.C. Cir.

1973), cert. denied, U.S.

(March 168, 1974) .ccccececce 10, 21, 22

Washington Research Project, Inc.

v. HEW, .

F.2 , No. 74-1027.

(1D.¢.: Sept. 12, 1974) oeeees eee 15, 22

Page

Statutes:

S BG 6s SE 552 2h ccs eer te kebevisornvercs passim

50 U.S.C. App. § 1217(a) ........-200- 24

Regulations:

32 C.F.R. § 1472.4 (1972)......2ceeeeee 17

39 F.R. 13650 (1974) ...isccccceces eer 6

Miscellaneous:

K. Davis, Administrative Law Treatise

114, (Supp. 1970) ..ccccccccccccscce 10

Dorsen and Shattuck, Executive Privilege,

the Congress and the Courts,

35 OHIO ST. L.J. 1, 29-33

(1974) “eee eaeveenee sacccce Sbecccccedeve 20

House Report No. 1497, 89th Cong.,

2d Sess. (1966) ....-cccccces coee ae, 2

Note, The Freedom of Informa%sion Act

and the Exemption for Intra-Agency

Memoranda,

86 HARV. L. REV. 1047 (1973) ...... » 83

Senate Report No. 813, 89th Cong.,

Let Sess. (1965) sccvcvvisuse oecceoece 19

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In The

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No. 73-1316

THE RENEGOTIATION BOARD,

Petitioner,

-V.-

GRUMMAN AIRCRAFT ENGINEERING

CORPORATION,

Respondent.

On Writ of Certiorari

To The United States Court of Appeals

For The District of Columbia Circuit

BRIEF FOR AMERICAN CIVIL LIBERTIES UNION AND

CONSUMERS UNION OF UNITED STATES, INC.,

AMICI CURIAE

i/

Interest of Amici

The American Civil Liberties Union is a

“1/ Letters from both of the parties, consent-

ing to the submission of this brief, have been

filed with the Clerk of the Court.

iiss se Fis ss. isseliniares

2

nationwide, non-partisan organization of

more than 250,000 members dedicated solely

to the preservation of the liberties safe-

guarded by the Bill of Rights. During its

fifty-four year existence the ACLU has been

particularly concerned with the freedoms

protected by the First Amendment to the Con-

stitution, and in recent years it has repre-

sented numerous citizens requesting disclo-

sure of information from executive agencies

of the Government under the Freedom of In=—~

formation Act.

The Consumers Union of United States, |

Inc., ("Consumers Union") is a nonprofit

membership organization chartered in 1936

under the laws of the state of New York to

provide information, education and counsel

about consumer goods and services and the

management of the family income. Consumers

Union's income is derived solely from the

sale of Consumer Reports (magazine and TV)

and other publications. Expenses of occa-

sional public service efforts may be met,

in part, by nonrestrictive, noncommercial

grants and fees. In addition to reports on

Consumers Union's own product testing, Con-

sumer Reports, with its 2.2 million circula-

tion, regularly carries articles on health,

product safety, marketplace economics, and

legislative, judicial and regulatory actions

which affect consumer welfare. Consumers

Union's publications carry no advertising

and receive no commercial support. In con-

nection with its product testing, publish-

ing, and other activities, Consumers Union

frequently requests information from govern-

ment agencies.2/

The public's right to know the bases and

criteria for decisions made by government

agencies is inherent in our system of govern-

ment. The Freedom of Information Act was

passed by Congress to ensure that the public

would be able to know how executive agencies

were discharging their functions. Amici

Curiae believe that this case and its com-

panion, National Labor Relations Board v.

Sears, Roebuck & Company, No. 73-1233, pre-

sent important questions concerning the

reach of the Act to prevent the development

of "secret law" by administrative agencies.

Question Presented

Cea: Rey Ee a

Whether the Freedom of Information Act

requires public disclosure of reports relied

upon by an agency in making final decisions

where the agency does not issue any formal

opinions explaining its decisions?

2/ The first lawsuit under the Freedom of

Information Act was brought by Consumers

Union to obtain hearing aid test data and

scoring methodologies from the Veterans Ad-

ministration. Consumers Union v. Veterans

Administration, 301 F. Supp. 796 (S.D.N.Y.

1969), appeal dismissed as moot, 436 F.2d

1363 (2d. Cir. 1971). Consumers Union was

also amicus curiae in Getman v. N.L.R.B.,

450. #.24 676,-673,.8. 25 (D.C. Cir. 1971).

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Statute Involved

The Freedom of Information Act, Title 5,

U.S.C. § 552 (hereafter "the Act"), is set

forth in an appendix to the petitioner's

brief, at pp. 41-44.

Statement of the Case

The respondent, Grumman Aircraft Engin-

eering Corporation (hereafter "Grumman"),

commenced this action under the Act to com-

pel the Renegotiation Board (hereafter “the

Board") to disclose certain documents ex-

plaining decisions of the Board and its de-

cision-making delegates, the Regional Boards,

as to whether particular companies had ac-

crued excess profits in their business with

the government.

The suit was brought in 1968, at a time

when the Board did not disclose its final

opinions in any form, but merely issued de-

cisions without explanation. Initially, the

Board asserted that the requested documents

contained confidential information covered

by the Act's exemption for “trade secrets

and commercial and financial information ob-

tained from a person and privileged or con-

fidential" [5 U.S.C. § 552(b)(4)]. The Court

of Appeals reversed a decision by the District

Court upholding the Board's claimed exemption,

and remanded the case for a determination of

what documents in fact constitute "final op-

inions" of the Board subject to disclosure

under the Act's mandatory affirmative provi-

5

sions.3/ Grumman Aircraft Engineering Corp-

oration v. Renegotiation Board, 425 F.2d 578

(D.C. Cir. 1970).

Following discovery on remand, including

a deposition of the Board's Chairman, the

District Court held on the basis of the evi-

dence before it that "a final opinion [of the

Board] is that document which states conclu-

sions and reasons upon which the Board has

acted as well as any dissents and concurrences

thereunto" [Pet. App. C, at 40A]. The court

further decided, as an issue of fact, that a

final opinion of the Board could be, depend-

ing on the particular circumstances, either:

3/ 5 U.S.C. §§ 552(a) (2) (A) and (B) provide

as follows:

(2) Each agency, in accordance with

published rules, shall make available

for public inspection and copying...

(A) final opinions, including concur-

ring and dissenting opinions, as

well as orders, made in the ad-

judication of cases;

(B) those statements of policy and

interpretations which have been

adopted by the agency and are

not published in the Federal Reg-

ister [emphasis supplied].

a a a a

6

(1) a Summary of Facts and Reasons; 4/ (2)

a report and recommendation of a Division of

the Board (consisting of three of the Board's

five members); (3) a report of a Regional

Board; or (4) a Statement of Facts and _

Reasons .5/

The Board appealed the District Court's

conclusion that Division reports and Region-

al Board reports are in fact "final opinions

-.- made in the adjudication of cases,"

claiming as it does here that both types of

reports are merely “advisory" and do not ne-

4/ Following the District Court's decision

on remand, the Board amended its regulations

to permit public inspection and copying of

such Summaries. 39 Fed. Reg. 13650 (1974).

In its brief the Board has neglected to in-

dicate that this amendment was made in an

apparent response to the mandate of the Dis-

trict Court. See Pet. Br., at 7-8. In any

event, the Board has abandoned its claim

that a Summary of Facts and Reasons is ex-

empt from disclosure.

5/ The Court of Appeals in its first deci-

sion, 425 F.2d at 579, had already held that

a Statement of Facts and Reasons was subject

to disclosure under the Act, and the Board

has not disputed this holding.

7

cessarily reflect, in the words of the court

below, the "unrecorded and undisclosed rea-

* sons" for a National Board decision [Pet.

App. A, at 4A]. The Court of Appeals again

‘rejected the Board's contentions, holding

that the District Court had correctly con-

cluded that whenever the Board issues a de-

cision without formally disclosing any rea-

sons, the Regional and Division reports ex-

plaining the basis for-such a-decision are

necessarily the same as "final opinions”.

\

Furthermore, the Court of Appeals found

two additional grounds for affirming the Dis-

trict Court. First, the Regional Boards are

“agencies” within the meaning 5 U.S.C. § 552

(a), whose final reports must be disclosed

regardless of their relationship to the Na-

tional Board. Second, even if, arguendo, the

documents at issue do not fall within the

Act's mandatory affirmative provisions [5 U.

S.C. § 552(a)(2)], they are nevertheless

"identifiable records" which must be dis-

closed under 5 U.S.C. § 552(a) (3) and are

not covered by any of the Act's exemptions

[S U.8.C..°4: S52}.

Introduction and Summary of Argument

The issue in this case is whether an ad-

ministrative agency can be permitted to keep

secret the reasons for its decisions simply

by choosing not to issue formal opinions ex-

plaining those decisions. Throughout this

litigation the Renegotiation Board has taken

the position that Grumman's claim and the de-

cisions of the courts below are based on a

;

Se ae |

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ES EAY EL LE PIE PLE NLL FBT NS RL ERR IR can

HORE Tem aR:

EET AEE SS AEG ER PR EEF NE IN SST SOR ROT

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8

"false assumption that all agencies must write

opinions" [Pet. Br., at 21]. This argument

misses the point of the case, which is not

that a formal opinion-writing requirement

must be imposed on administrative agencies,

but rather that any documents explaining the

reasons for a particular administrative deci-

sion must be disclosed when no formal opinion

is issued.6/

For many years the Renegotiation Board has

functioned in almost total isolation from

public scrutiny, neither explaining its de-

cisions nor publishing the criteria for mak-

ing them. Only as a result of this case has

the Board been forced to recognize that its

longstanding policy of not issuing formal |

opinions does not insulate it from a statu-

tory obligation to disclose any document

which is the functional equivalent.of a final

opinion. Whatever label the Board may apply

6/ However, the imposition of sanctions by

an administrative agency without a cogent

statement of reasons raises serious consti-

tutional questions. See United States v.

Holby, 477 F.2d 649, 656-57 (2nd Cir. 1973);

United States ex rel. Checkman v. Laird, 469

F.2d 773 (2d Cir. 1972); United States v.

Broyles, 423 F.2d 1132 (3rd Cir. 1970);

United States v. Houghton, 413 F.2d 736 (9th

Cir. 1969). See also Joseph v. United States,

405 U.S. 1006 (1972); Fein v. United States,

405. U.8. 365. (2972)

~

1 EAL RN DRE BE AE MEE LEEOES LDPE DAE IONAL DA SEO LAA DE ESS TRAN

9

to a particular document explaining a deci-

-Sion reached or a policy adopted, that docu-

ment must be disclosed under subsections (a)

(2) (A) and (B) of the Act. Furthermore, such

a document is by definition not exempt from

disclosure under subsection (b) (5) just be-

cause the agency: has labelled it an "“advis-

ory report" or a "staff memorandum", since

it is the functional equivalent of a "final

opinion” or a "statement of policy... which

[has] been adopted."7/

The reason for compelling the disclosure

of the reports at issue in this case is not

obscure. The record amply demonstrates that

the Renegotiation Board simply does not want

to explain its decisions, preferring instead :

to enshroud its functions in secrecy and to &

issue ultimatums to the parties before it. ;

This practice is an intolerable burden on :

the public, since millions of taxpayer dol-

7/ The Court of Appeals explained succinctly

and correctly that "the two sections are mu-

tually exclusive. By definition ‘final .opin- |

ions, including concurring and dissenting op- ©

inions' cannot be ‘inter-agency or intra- e

agency memorandums'.... Congress in enacting

the exemption, did not mean for agencies to

refuse disclosure of documents merely on the

ground that such documents were customarily 4

circulated only within the bureaucracy” [Pet. ©

App. A, at 12A, 14A]. . §

Bina. WLR

10

lars are at issue in every Board decision.

Taken to its essentials, therefore, this

case turns on the fundamental premise of

the Freedom of Information Act that "secret

law is an abomination." Stokes v. Brennan,

476 F.2d 699, 702 n. 3 (5th Cir. 1973), quot-

ing K. Davis, ADMINISTRATIVE LAW TREATISE 114,

137 (Supp. 1970).8/ The Sixth Circuit Court

of Appeals recently explained this premise

in terms pertinent to this case and reflec-

8/ See also Sterling Drug, Inc. v. FTC, 450

F.2d 698, 708 (D.C. Cir. 1971); Tax Analysts

and Advocates v. Internal Revenue Service,

362 F. Supp. 1296; 1310 (D.0.C. 2973), afft*d,

oi , (D.C. Cir. August 19, 1974);

Vaughn v. Rosen, FP. Supp....-. . Slip Op.

at 506 (D.D:.C. October 9, 1974), on remand

from 484 F.2d 820 (D.C. Cir. 1973), cert de-

nied, v8. (March, 18, 1974). Com-

pare EEOC v. Los Alamos Constructors, FF.

Supp. , 43 L.W. 2169 (D.N.M. October 9,

1974) ("Those unfortunate enough to be forced

into litigation with the government still

face agency insistence of trial be ambush....

Appointment to office does not confer upon a

bureaucrat the right to decide the rules of

the game applicable to his crusades....[I]t

seems to be endemic with government employees

to say that their agency is in sanctimonious

hot pursuit of a Holy Grail which immunizes

them from the demands of fair play and the

requirement of due process of law....").

1l

tive of the interests of amici:

One of the reasons for the First

Amendment, as well as the Freedom

of Information Act, is to promote

honesty of government by seeing to

it that public business functions

under the hard light of public scru-

tiny. Tennessean Newspapers v. FHA,

464 F.2d 657, 660 (6th Cir. 1972).

Argument

I

THE REGIONAL BOARD AND DIVISION REPORTS ARE

FINAL OPINIONS SUBJECT TO DISCLOSURE UNDER

SUBSECTION (a) (2) OF THE ACT,

A. Documents.on which an agency relies

in reaching a final decision must be dis-

closed..

Pn NOTRE. —~

In Freedom of Information Act cases it is

sometimes difficult for courts to draw lines

between final agency orders, opinions and

policy statements, on the one hand,and pre-

decisional memoranda on the other. This dif-

ficulty is created by agencies such as the

Renegotiation Board which operate largely in

secret and do not voluntarily disclose the

reasons underlying their decisions. Under

these circumstances it is incumbent upon the

courts, as this Court recently pointed out,

to employ “the same flexible, common-sense

approach that has long governed private par-

PE ONE a eek Ce

~~

des

Diiiiesttciseeieirincu,

i a

ties' discovery" of agency materials in de-

termining what must be disclosed. Environ-

mental Protection Agency v. Mink, 410 U.S.

73,: 91 (1973).

When an agency issues an order accompan-

ied by a detailed opinion or explanation,

or makes full declaration of policy, there

is no néed for further disclosure. In Mont-

rose Chemical Corporation v. Train, 491 F.2d

63 (D.C. Cir. 1974), for example, Montrose

sought two summaries of evidence developed

by agency personnel prior to an administra-

tive hearing. The Court of Appeals held

that the summaries were not subject to dis-

closure, pointing out that the agency had

already published an opinion of its final

decision concerning the subject matter of

the hearing. Emphasizing that the agency

had accompanied its decision with the re-

lease of voluminous facts and statistics,

the court was satisfied that "the factual

basis [and] the reasoning behind the final

product" had been publicly disclosed [491

F.2d at 68].

In many instances, however, an agency

will offer an incomplete explanation or no

explanation at all-for a decision it has

reached or a policy it has adopted. See,

e.g., Tax Analysts and Advocates v. Inter-

nal Revenue Service, F.2d (D.C;

Cir. August 19, 1974), aff'g in part, rev'g

in part, 362 F. Supp. 1298 (D. D.C. 1973);

Hawkes v. Internal Revenue Service, 467 F.2d

787 (6th Cir. 1972). This is the practice

of the Renegotiation Board, which declines

i

to issue opinions and leaves the parties

and the public in the dark about the bases

for its final decisions. In cases such as

this, therefore, the courts must ascertain

what documents the agency in fact relied up-

on in reaching a decision or adopting a pol-

icy so that the documents may be made "avail-

able for public inspection and copying” as

the functional equivalent of "final opinions"

or “interpretations of policy" under subsec-

tion (a) (2) of the Act.

The easiest case is presented by an agency

which publicly states that it is relying on

a particular document or report by incorpor-

ating a portion of it into its decision. See

American Mail Lines, Ltd. v. Gulick, 4l1l F.2d

696 (D.C. Cir. 1969). The reliance principle

enunciated in Gulick, however, necessarily

applies also to cases in which the agency re-

lies upon a document or report but does not

publicly refer to it because it does not pub-

lish opinions. In Sterling Drug, Inc. v.

FTC, 450 F.2d 698 (D.C. Cir. 1971), for ex-

ample, the Federal Trade Commission had is-

sued a ruling on a proposed merger without

offering any explanation or reasoning, or

explicitly referring to any reports. The

Court of Appeals ordered the District Court

“to determine which agency documents were "in

fact" relied upon by the Commission, on the

ground that "private transmittals of binding

agency opinions and interpretations" are a

form of forbidden "secret law” [450 F.2d at

708]. The court held that the principle of

Gulick could not be limited to documents pub-

licly referred to by an agency, but must ne-

PIERS IPE LETS TE ETT IM

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cessarily cover any documents in fact relied

upon:

Gulick does not by its express terms

require this result, since in that

case we relied to some extent on the

fact that the agency document contain-

ing the reference to the staff memor-—

anda was made public. The result is

nonetheless necessary to prevent the

development of secret law within the

Commission [450 F.2d at 707] .9/

A similar analysis was employed by the Ninth

Circuit in General Service Administration v.

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

held that ddécuments never made public or re-

ferred to by the agency were subject to dis-

closure to the extent that they werxe in fact

“statements of policy and interpretations

which have been adopted" within the meaning

of subsection (a) (2) of the Act.

|

9/7 —"The Sterting-majority—heid—that—documents——__

prepared by the Commission staff and by in-

dividual members of the Commission, "most of

[which] were written after the Commission's

decision" [450 F.2d at 706] [emphasis supplied],

would not have to be disclosed "unless adopted

by the Commission" [Id., at n. 7]. The dis-

sent in Sterling disagreed with the majority's

conclusion that the documents had not been

adopted.

«

pA

B.. Regional Board Reports

The courts below correctly applied the

"reliance" standard to the decision-making

process of the Renegotiation Board and: con-_

cluded that Regional Board reports are in

fact relied upon in making final decisions.

The .Court of Appeals held that these reports

are the functional equivalent of final opin-

ions of the National Board, but that in any

case they constitute final opinions of the

Regional Boards, which are themselves "agen-

cies" within the meaning of the Act.10/

The Board relies solely on the t@stimony

of its chairman to support its assertion that

it neither adopts nor relies upon Regional

Board reports in making decisions. The chair-

man testified that the Board "simply approves

or disapproves the clearance [action recom-

mended by a regional board]. It,does not

adopt any of the memoranda that are before

it” {365 2. Supp. at 1149}.

10/ Amici adopt the thorough treatment of

the question of a Regional Board's status as

an agency in the opinion of the Court of Ap-

peals [Pet. App. A, at 3A-13A]. See also,

Washington Research Project, Inc. v. HEW,

F.2d » No. 74-1027 (D.C. Cir. Sept-

ember 12, 1974) in which the opinion below,

is discussed at length at Slip Op., 11-17.

T Mines PORT NALS LARA CRED AOA 8 ig SPIEL TAO ee BOBO NE NPR ORES BS Att oe

16

Neither of the courts below was persuaded

by this assertion. The District Court found

_ that a Regional Board report contains the

facts and the reasoning for the recommenda-

tion made in the report. Since the issuance

of an unexplained clearance notice by the

National Board is "meaningless", the court

_ concluded that "the reasons behind the clear-

- ance notice must be made available and in

this type of case such facts and reasons are

found in the Regional Board's report" [325

F. Supp. at 1153].

; The Court of Appeals held that the Board's

_ nomenclature could not determine disclosure

under the Act. An agency cannot refuse to

disclose documents simply because such docu-

ments are customarily circulated only within

the bureaucracy. See Bristol-Myers Company

v. PIC, 424 F.2a.935, 939 (D.C. Cir. 1970).

To the extent that the Board accepts the bot-

tom line recommendation of a Regional Board

report without issuing any explanation of

its own, that adopted recommendation is mean-

red Hthout—ti heartened 3 }

‘ ations in the rest of the report. Otherwise,

"the world is... left in doubt as to either

the factual basis or the reasoning behind"

the Board's decision, Montrose Chemical Corp-

oration v. Train, 491 F.2d at 68, and the

purpose of the Act is thereby circumvented.

C. Division reports

When the Board does not agree with a re-

commendation of a clearance or agreement pre-

pared by the Regional Board, a division of

Fn a ee

47

the Board composed of three of the five mem-

yers investigates and writes a report for

consideration by the full Board [32 C.F.R.

3472.4 (1972)].

The Board considers the recommendations

ct the Division and then votes in the case.

yn those instances where the Board adopts

¢he recommendations, it nevertheless contends

jn this litigation that only the report's

conclusion, but not the report itself, is

sdopted. This assertion was similarly unper-

cuasive to the courts below. The District

court concluded from the evidence that a Di-

yision Report "represents the reasons why at

yeast a majority of the Board decided clear-

ance should issue. If not specifically

sdopted by a majority of the Board it at

yeast represents one member's analysis of

¢he issues and reasons for deciding that a

clearance should issue and would be a con-

curring opinion" [325 F. Supp. at 1153].

Division Reports are by definition opin-

_jons—prepared—by—agency—decision=makers to

justify their decisions. The reports are

epared when the Board does not accept the

yecommendations of the Regional Board. The

rivision offers a different recommendation

y,ith supporting evidence and reasoning, which

at the very least becomes a "concurring or

gissenting opinion” in the final decision of

¢he full Board, and is therefore subject to

gisclosure under the express terms of subsec-

¢ion (a)(2)(A) of the Act.

0. NE, AP ARE NEI SATEEN IS GLO MNSLLU LAS TRE 0a ELL AE BEE Ay saat SP

18

II

REPORTS WHICH MUST BE DISCLOSED AS FINAL

OPINIONS ARE NOT COVERED BY THE FIFTH EX-

EMPTION OF THE ACT.

The Board in its brief has attempted to

demonstrate that its Regional and Division

Repo-ts are covered by the exemption in the

Act for "inter-agency or intra-agency memo-

randums or letters which would not be avail-

able by law to a part other than an agency

in litigation with the agency" [5 U.S.C. §

552(b)(5)]. Since this exemption cannot by

definition apply to documents subject to dis-

closure as the "final opinions" of an agency

within the terms of subsection (a) (2) (A) of

the Act, the court below correctly recognized

that it was unnecessary to reach the Fifth

Exemption claim in order to uphold the Dis-

trict Court. The exemption is relevant only

to the extent that the reports are not "final

i opinions", but are merely "identifiable rec-

' ords" covered by subsection (a) (3), the catch-

aii artrtirmative provision of the Act. tt7 EverTi

under the broader “identifiable records" stan-

' dard, however, the reports are not covered

_by the Fifth Exemption.

i

In Environmental Protection Agency v.

_ Mink, 410 U.S. at 91, this Court gave the

. Fifth Exemption a "flexible, common sense"

construction consistent with underlying con-

ll/ See note 7, supra.

BA UOC LCBO IT CLIVE BAIL CEBEABS IO Sl 5 ce RLS OT NG ey

i9

gressional intent "to delimit the exception

as narrowly as consistent with efficient Gov-

ernment operation." S. Rep. No. 813, 89th

Cong., lst Sess. (1965), at 9. See also H.R.

Rep. No. 1497, 89th Cong., 2d Sess. (1966),

at 10. As the Court pointed out:

[T]he privilege that has been held

to attach to intragovernmental memo-

randa clearly has finite limits, even

in civil litigation. In each case,

the question was whether production

of the contested document would be ‘in-. _

jurious to the consultative functions

of government that the privilege of

nondisclosure protects.’ Kaiser v.

Aluminum & Chemical Corp., 157 F.

Supp. at 946 [410 U.S. at 87].

Documents pertaining to the "consultative

functions of government" are necessarily at

the opposite end of the administrative pro-

cess from documents reflecting what the House

Report on the Act termed "the end product of

Federal administration" [H.R. Rep. No. 1497,

at 7]. Documents coming within the latter

catecory are subject to disclosure under the

Act precisely because they go beyond the

"free discussion of prospective operations

and policy," Kaiser Aluminum & Chemical Corp- |

oration v. United States, 157 F. Supp. at 947, ©

and reflect the substance and reasoning of

administrative decisions already reached.12/

12/ Compare Boeing Airplane Company v. Cog-

Piitsiaase Neda Berea raween'

20

In separating the "consultative" from the

"decisional" stages of governmental process,

it is important to bear in mind that docu-

ments generated at the "consultative" stage

are not immutably "pre-decisional". What

may once have been an advisory memorandum

may later become a final opinion; what may

at first have been a "trial balloon" may be-

come an adopted policy. Documents privileged

at one stage of the decision-making process,

therefore, can lose their privileged status

at the final stage, since, as this Court in-

dicated in Mink, 410 U.S. at 87, "the privi-

lege that has been held to attach to intra-

governmental memoranda clearly has finite

limits...." These limits are plainly re-

flected in the legislative history of the

Fifth Exemption. The House Report, for ex-

ample, states that:

[A] Government agency cannot always

’ e ’ sess . e “e

(documents explaining excess profits tax de-

termination by Renegotiation Board held dis-

coverable) with Carl Zeiss Stiftung v. V.E.B.

Carl Zeiss, Jena, 40-F-R.D. 318; 327 (D<D.C.),

aff'd, 384 F.2d 979 (D.C. Cir.*»1966), cert.

denied, 389 U.S. 952 (1967) (discovery denied

because documents consisted entirely of "“pre-

decisional opinions, recommendations and de-

liberations"). See Dorsen and Shattuck, Ex-

ecutive Privilege, the Congress and the Courts,

35. OHIO ST. L.J. 1, 29-33 (1974).

aT)

nn = ee ee ee Ot 9 ee

ak

operate effectively if it is re-

quired to disclose documents or

information which it has received

or generated before it completes

the process of ... isSuing a...

decision. This clause-~- [the Fifth

Exemption] is intended to exempt

from disclosure this and other in-

formation and records wherever ne-

cessary without, at the same time,

permitting indiscriminate secrecy

[H.R. Rep. No. 1497, at 10] [empha-

sis supplied]. :

~

Courts which have construed the Fifth

Exemption have applied two principal limi-

tations to its operation. First, as this

Court held in Mink, 410 U.S. at 88, "purely

factual material" must be disclosed even if

it appears in pre-decisional, consultative

memoranda, since such disclosure would not

have any injurious effect on the giving of

pure advice. See also Soucie v. David, 448

F.2d 1067, (D.C. Cir. 1971); Bristol-Myers

tional Paper Company v. FPC, 438 F. 2d 1349,

1358-59 (2a Cir. 1971).

Second, and of greater importance to this

case, the Fifth Exemption does not extend to

"final evaluations ... of existing policies”

or decisions made, whether or not they con-

tain "purely factual materials". Vaughn v.

Rosen, F. Supp. , Civil Action No.

1753-72, Slip Op. at 5-6 (D.D.C..October 9,

1974), on remand from 484 F.2d 820 (D.C. Cir.

1973), cert denied, U.S. (March 18,

awl

22

1974). See also Stokes v. Brennan, 476 F.2d

at 704. Cf. Tennessean Newspapers, Inc. v.

FHA, 464 F.2d at 660. As the District Court

% explained in Vaughn, this second limitation

i recognizes that "Exemption 5 was designed to

3 prevent premature disclosure of agency records

-... Thus, the line we must draw is between

pre-decisional and decisional documents" [Id.,

Slip Op. at 5] [emphasis supplied]. On the

exemption side of this line are materials

which are purely prospective in nature and

unrelated to any decision already made. See,

e.g., Washington Research Project, Inc. v.

HEW, supra (advisory memoranda of agency

staff having no decision-making role) ;13/

Sterling Drug, Inc. v. FTC, supra (staff

produced papers unrelated to existing deci-

sions). In the language of the opinion be-

‘low these cases all point to "a distinction

... between documents composed exclusively

for purposes of assisting pol3 formulation

“—

13/ The opinion in Washington Research Pro-

IIe One, eee, Ce ee Lo |

_ does not confront a situation in which the

underlying information, a summary of which

_ is determined to be exempt, is itself se-

_ ereted from public inspection,... [where]

_ ‘a different result might be reached'" [Id.,

Slip Op. at 22 n. 20]. That is precisely

the circumstance confronting the Court in

this case.

Pitkeersteccsrcs,

ee

23

and those which serve to reflect policy al-

ready made and announced” [Pet. App. A, at

18A]. See generally Note, The Freedom of

Information Act and the Exemption for Intra-

agency Memoranda, 86 HARV. L. REV. 1047,

1057-61 (1973).

The Regional Board and Division reports

at issue in this case reflect final agency

decisions already made and announced.

The adopted recommendations of subordin-

ate staff by definition become agency policy.

No staff member is personally exposed to pub-

lic scrutiny when the entire agency stands

behind a*policy or decision which he parti-

cipated in formulating. Adopted recommenda-

tions of the Regional Boards become Renego-

tiation Board policy; the Board itself must

assume responsibility for documents explain-

ing its policy. Discarded or unheeded advice

is, of course, protected from disclosure un-

der this formulation. A staff member play-

ing a devil's advocate role need never defend

his conduct in public, while an advisor who

advances unacceptable options without "due

reflection" need not explain his recommenda-

tions publicly.

Finally, the Renegotiation Board argues

that release of Division reports will re-

sult in unwarranted attacks on Board members.

"The possibility that publicly disclosed di-

vision reports will be seized upon as a basis

for attacks upon their decisions can only

lead Board members to be timid in making re-

commendations" [Pet. br., 26-27]. Board mem-

Qype res ena enssmntionnns aR. SRE we OnY Yat otitis PAE me Ae hna sito et

24

bers, however, are presidential appointees

empowered to issue unilateral orders with

respect to the elimination of excess prof-

its [50 U.S.C. App. 1217(a)]. Members,

therefore, must expect and even welcome pub-

lic criticism of their decisions. To suggest

that public criticism wiil always result in

timid decision-making is to ignore the real-

ities of public life in our system of govern-

ment. Public criticism and scrutiny of gov-

ernmental decision-makers is a necessary fix-

* ture of democracy which the Freedom of Infor-

mation Act was intended to preserve.

Conclusion

For the foregoing reasons, the decision

of the Court of Appeals should be affirmed.

Respectfully submitted,

MELVIN L. WULF

JOHN H. F. SHATTUCK

American Civil Liberties

Union Foundation _

22 East 40th Street

New York, New York 10016

CAROL A. COWGILL

Consumers Union of

United States, Inc.

1714 Massachusetts Avenue, N.W.

Washington, D.C. 20036

MARVIN M. KARPATKIN

4 1345 Avenue of the Americas

j New York, New York 10019

Attorneys for Amici Curiae

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