LOCATION: Allegheny County District Court
DOCKET NO.: 71-909
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 410 US 73 (1973)
ARGUED: Nov 09, 1972
DECIDED: Jan 22, 1973
Roger C. Cramton - for petitioners
Ramsey Clark - for respondents
Facts of the case
Media for Environmental Protection Agency v. Mink
Audio Transcription for Oral Argument - November 09, 1972 in Environmental Protection Agency v. Mink
Warren E. Burger:
We'll hear arguments next in number 71-909 Environment Protection Agency against Mink.
Roger C. Cramton:
Mr. Chief Justice and may it please the Court.
This Freedom of Information Act suit was brought by respondents to compel the release of documents prepared for the President relating to the then proposed and now completed underground nuclear test at Amchitka Island, Alaska.
It presents fundamental questions concerning the scope and application of exemptions one and five of the Freedom of Information Act.
Whether documents prepared to advise the President with respect to underground nuclear test, many of them containing Top Secret and Secret information are exempt from compulsory disclosure under the Act and whether a District Court should be required to make an In Camera Inspection of the documents in order to determine whether portions are non-secret or factual in character.
The facts maybe quickly summarized.
On July 28, 1971 Congresswoman Mink asked President Nixon to release reports prepared for him relating to the proposed Amchitka test.
The President declined to do so.
His counsel replying on July 30 that “these recommendations were prepared for the advise of the President and involve highly sensitive matters that are vital to our national defense and foreign policy.”
Several weeks later, respondents instituted this action pursuant to the Information Act.
A separate litigation committee for a Nuclear Responsibility versus Seaborg the so called CNR case was brought by an environmental group to enjoin the test itself.
This Court denied an application for an injunction in that case on November 6, 1971, a little more than year ago and the Amchitka test was conducted successfully later that same day.
A partial or total declassification and public release of declassified parts of three documents involved in this case occurred in connection with the CNR litigation.
Respondents continue to seek the undisclosed material, including three classified documents not involved in anyway in the CNR case.
The District Court in this case without In Camera Inspection granted the government’s motion for summary judgment holding that the document fell within exemptions one and five of the Act.
The district court relied on an affidavit of Under Secretary of State Irwin, who is Chairman of the National Security Council Committee which prepared the report for the President on the Amchitka blast.
The nine documents sought by respondents are described in some detail in the Irwin affidavit.
Three including the report of the Irwin committee itself and a Top Secret report from Dr. Kissinger are classified as Top Secret.
Three others are classified as Secret including reports from the AEC and the Office of Science and Technology and all nine documents as the Irwin affidavit stated “were prepared and used solely for transmittal to the President as advice and recommendations and set forth the views and opinions of the individuals and agencies preparing the documents so that the President might be fully apprised of varying viewpoints.”
The Court of Appeals reversed and remained the case to the District Court for In Camera Inspection of the documents and a determination whether disclosure should be ordered as the sum of the materials.
It ruled that document classified as Top Secret and Secret pursuant to Executive Order 10501 should be reviewed by the District Court to permit disclosure of any “non-secret components which are separable from the secret remainder.
With respect to the governments claim under exemption five that the nine documents were internal memoranda containing policy advice” the Court held that the document should be reviewed in camera to permit disclosure and “a factual information unless it is inextricably intertwined with policy making processes.”
In both respects I submit the Court below was grievously in error.
The starting point is the language of the Act.
Exemption one excludes from the Act disclosure requirements “matters specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy,” matters specifically required by Executive Order to be kept secret.”
The legislative history makes it clear that this language means what it says that the exemption protects from disclosure governmental records such as six of the nine documents sought here which have been classified as Top Secret or Secret pursuant to the authority granted by Executive Order 10501.
Respondent’s argument that the President must individually classify each document by a separate Executive order is preposterous on its face.
When Congress enacted the Freedom of Information Act in 1966, it legislated against the backdrop of many years of operation of the classification system.
Executive Order 10501 which has provided the basis for classification of the defense information since 1953, was repeatedly referred to, during congressional consideration of exemption one and clearly it is an Executive Order which “specifically requires certain matters specified therein to be kept secret.”