Environmental Protection Agency v. Mink

PETITIONER:Environmental Protection Agency
RESPONDENT:Mink
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

ADVOCATES:
Roger C. Cramton – for petitioners
Ramsey Clark – for respondents

Facts of the case

Question

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.

Mr. Cramton.

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.”

Roger C. Cramton:

When a document is properly classified pursuant to the applicable Executive Order, the government is not required to review the document paragraph by paragraph to determine whether portions of it are non-secret and maybe disclose.

Executive Order 10501 which is reprinted in the appendix to our brief, treats the document as the appropriate unit for classification purposes.

Thurgood Marshall:

Tell me again the difference between Top Secret and Secret?

Roger C. Cramton:

It is a different in degree.

The language of both Executive Orders the new and the old are require somewhat greater showing of jeopardy to national defense and foreign policy interest for classification as Top Secret rather than Secret.

Thurgood Marshall:

Is that the best you can do?

Roger C. Cramton:

Both Executive Orders spell out in its clear languages as available to the drafts matters which were vital to national defense that the latest Executive Order mentions (Vice Overlap)

Thurgood Marshall:

I am not saying that (Voice Overlap) I just think you can do any better.

I am not saying in criticism at all, it is just a puzzling to me.

Potter Stewart:

Well it purports to me the criteria, the alleged criteria said on page 49 of your brief, Top Secret as (a) secret is (b) —

Roger C. Cramton:

And then there is confidential (Voice Overlap).

Potter Stewart:

Confidential is (c) and they (Voice Overlap).

Roger C. Cramton:

It is just a matter of degree and the most secret and sensitive data falls into the Top Secret category, but once a document which contains vital defense information has been classified, all material in a particular document is protected under exemption one.

Warren E. Burger:

Would it be reasonable to assume that in most classified documents there are sentences and paragraphs and parts that are completely innocuous?

Roger C. Cramton:

There may well be.

Now in many cases it will be impossible as a practical and administrative matter to separate them all.

In many cases there will be inextricably intertwined.

There maybe situations in which only a very small portion of a large document deals with classified matters.

Now many agencies have regulations that require paragraph by paragraph classification.

And the new Executive Order extends that practice more generally to the Federal government as a whole to the extent practical.

My point is the Congress adopted the Executive Orders and deferred to the procedures applicable under those Executive Orders and those Executive Orders referred to the document as a whole except to the extent that the new Executive Order promulgated last Spring does push agencies in the direction of a paragraph by paragraph marking of paragraphs of a larger document.

Potter Stewart:

What significance would you give to the provisions of this legislation that provide for a de novo hearing in a District Court and put the burden of proof on the government agency, any at all?

Roger C. Cramton:

The significance is very considerable under some of the exemptions of Act.

I think (Voice Overlap).

Potter Stewart:

With the respect to this when you say ex parte affidavit, that’s the end of it?

Roger C. Cramton:

Congress has said that the matter is exempt in a meaningful —

Potter Stewart:

I know it hasn’t said anything about it.

Roger C. Cramton:

If it is classified pursuant to an Executive Order dealing with the national defense information.

Potter Stewart:

And here we have an ex parte affidavit, am I right?

Roger C. Cramton:

That is right.

Potter Stewart:

No opportunity for our a court to determine whether not to even this was stamped Secret or the Top Secret?

Roger C. Cramton:

But absolutely no reason from the affidavit itself in the surrounding circumstances to question the assertions in the affidavit itself and the circumstances of the test, here we’re dealing with a weapon’s test in the atomic field, in an area in which it is known not that only our technological lead in the military field is vital to our national defense but also with an area which is well known because of the treaty obligations, because of the international — the sensitivity of the international community on these matters where it is well known that there are foreign policy repercussions and the Irwin affidavit places those documents plainly in the sixth that the to which exemption one applies squarely with an a core area of the interest that Congress intended to protect and remain privileged.

Potter Stewart:

So do I understand then that your answer to my question is that with respect to category one, this language just we should be wholly be disregarded that the –?

Roger C. Cramton:

No, not entirely.

Potter Stewart:

That the burden is not on the government agency and that the Court has no business determining the matter de novo despite what Congress has enacted?

Roger C. Cramton:

The Court may properly impose a burden on the government to supply an affidavit which lays out, that describes the documents and which lays out the surrounding circumstances.

The government did that here.

Now if you have a situation in which the likelihood or the plausibility of any secret matter being involved then further inquiry by the Court might be appropriate.

Potter Stewart:

Normally that’s not the way a Court operates is it, to take x- part of the affidavit to say that is the end of it.

You have sustained your burden of proof (Voice Overlap).

Roger C. Cramton:

It surely is in this area.

The holding of the Court below is totally novel.

It is the first case which has ordered the United States to produce for in camera inspection documents which the United States claimed and plausibly showed by the surrounding circumstances in the affidavit were military or State secrets.

This is the first case of that kind and let me refer to some of the earlier precedents —

Thurgood Marshall:

Well, I have big problem with you showing that it has military significance except your word that it is?

Roger C. Cramton:

I do not see how anyone could doubt that the yield, the methods, the scientific technology involved — the testing of atomic weapons involves the most vital and sensitive matters to our national security.

And anyone could think that a nuclear weapons test in the present international climate is not also a matter which involves vital foreign relations interest of the United States.

Thurgood Marshall:

Well, does the affidavit say that’s the only thing that is in this document?

Roger C. Cramton:

No it does not, but it says that the documents were prepared to (Voice Overlap) president and that they contain classified and secret information.

Thurgood Marshall:

Which they say would be injurious to the national welfare which the government said?

Roger C. Cramton:

That is correct.

Thurgood Marshall:

Well how do we test that?

Roger C. Cramton:

The same way that you test a claim of the privileged against self incrimination.

You do not require the defendant who claims or the witness who claims the privilege against self incrimination to incriminate himself even before the judge in camera in order to get the benefit of the protection which the law is designed to extent to it.

All you require is that you give a hint —

Thurgood Marshall:

Are you willing to —

Roger C. Cramton:

— as to why an apparently innocuous question mainly to the discovery of a clue to information that maybe incriminated.

Thurgood Marshall:

Please Mr. Cramton, do not put your government’s position on the same level as a defendant pleading the Fifth Amendment, please.

Roger C. Cramton:

I do, I think under our constitutional scheme.

Thurgood Marshall:

Well, that’s the way you don’t put it —

Roger C. Cramton:

— the operation of the office of President just as the operation of the Supreme Court of the United States in the judiciary, just as the operation of the Congress is an extremely important —

Thurgood Marshall:

(Inaudible)

Roger C. Cramton:

The limited role of the Courts in passing upon classification determinations of the executive branch is well established in prior decisions.

We discuss the Epstein case in our brief.

Potter Stewart:

Are there any constitutional issues involved here?

I thought this is purely a matter of statutory, it is — (Voice Overlap)

Roger C. Cramton:

It is purely a matter of statute except that you have to act and interpret the statute as the Court always does in the light of the constitutional backdrop.

No claim of executive privilege has been made in this case, but the Information Act does offer a great potential and a great risk of direct conflict between coordinate branches of government.

When the same question comes up in connection with the privilege for State secrets, and prior to civil litigation or litigation which the government is a part of it, there is never a direct order to a government official to produce or go to jail.

What happens is the government is penalized in litigation if it refuses to produce information that the Court believes is relevant to the opponent’s case.

The Information Act context is very different because in Information Act context, you run the risk of an order directed to the executive to produce the materials which the executive may believe are in fact constitutionally privileged as well as privileged under the statute.

William O. Douglas:

I thought that the inquiry that the District Court was supposed to make was a limited one under B (1)?

Roger C. Cramton:

He is supposed to determine whether portions of the documents maybe safely revealed to the public.

Now it’s our view that, that is an inquiry that district judges should not make.

One it invites them to substitute their judgment for the executive who is made the classification determination.

William O. Douglas:

I did not think that — well maybe you know more about the case than I do, but I thought that a lot of things, collateral documents went under the big umbrella because they were merely related not because it’s been separately designated as secret by the executive?

Roger C. Cramton:

The government does not contest that part of the case, the decision below that deals with classification by association.

Neither the earlier executive order nor the new executive order protect documents which contain no classified material, but happen to be in a classified file.

We do not content that unclassified documents inside a large file are protected.

We do content —

William O. Douglas:

You have no claim then of it — no objection to their treatment under B (1)?

The Courts —

Roger C. Cramton:

What’s under B (1), I –?

William O. Douglas:

The Court of Appeals said that on page 27 of the Appendix, the first full paragraph, such documents are not entitled to the secrecy exemption by subdivision B (1) solely by virtue of their association as separately classified?

Roger C. Cramton:

That’s right.

Our petition for certiorari says we do not contest that part of the case.

William O. Douglas:

Though, though your —

Roger C. Cramton:

The executive order requires documents to be classified on a basis of the information, they contend.

William O. Douglas:

The only other thing that as I recall that they passed on was sub Article under B (5)?

Roger C. Cramton:

No, no we do claim that the exemption one is applicable here.

Roger C. Cramton:

The exemption one is applicable as to six of the nine documents which are involved.

What we have — what we do not content is the doctrine of so called classification by association that was discussed the Court of Appeals.

We do contend that the District Court should not examine in camera Top Secret or Secret documents in order to determine whether they were properly classified, whether they contain secret material or whether a portion of them properly be made available to the public.

We think that the district judge just does not have the informational base to do that and particularly if it has to be done in camera without the assistance of the advisory process.

Potter Stewart:

Congress apparently did think the District Courts had the ability to do it because it said in such a case the court shall determine no matter de novo and the burden is on the agency to sustain its action.

Now you think the Court is incapable, maybe we might think it’s incapable, but Congress gave that function to the District Courts?M

Roger C. Cramton:

That has to be interpreted in the past history and in light of dealing with military or state secrets which is the correlative evidentiary privilege that has existed and which this Court construed in the Reynolds case —

Potter Stewart:

And what –?

Roger C. Cramton:

— in which the Court said, the Court should not make an in camera investigation, even in chambers (Voice Overlap)

Potter Stewart:

Did it have the statute, was it in construing the statute?

Roger C. Cramton:

No it was not.

Potter Stewart:

But where — that’s what we have here is the statutory language, and what does it mean?

Roger C. Cramton:

But it was adopted in the background and light and the legislative history is very clear that what Congress was doing was not asking the Courts to second guess the classification determinations of the Federal government.

Potter Stewart:

Well, what does this language mean in your submission?

Roger C. Cramton:

It means under exemption one is to whether or not at the most the classification or determination made by the executive is not arbitrary or capricious.

The government can be required to show by an affidavit in the surrounding circumstances that secret material is involved and that is surely been done here as (Voice Overlap).

Potter Stewart:

There has been no cross examination of anybody?

Roger C. Cramton:

No there is not.

Potter Stewart:

Normally that’s what happens in a District Court and there is no indication here (Voice Overlap) which it has a more limited in function?

Roger C. Cramton:

Even the respondents do not content that the advisory process is going to be fully operated here and the high government officials are going to be asked to testify and the cross examination is to the exact content of this document.

How could anything be maintained secret?

Any person in bringing the information suit could then get the secrets revealed merely in a process of trying to find out whether or not they were exempt and I think the analogy — the privilege against self incrimination of the procedure used in the application of other privileges, are highly relevant here and the Reynolds case, the Epstein case are directly implying.

William O. Douglas:

How should we construe the de novo then here?

Potter Stewart:

Yes.

Roger C. Cramton:

It means that the Court should decide on the basis of the information that satisfies it that the exemption is applicable and here the government’s affidavit and the surrounding circumstances do provide information which show that military secrets and foreign policy secrets are involved here (Voice Overlap)

Warren E. Burger:

What did the district judge do when that was presented to him?

Roger C. Cramton:

He accepted that contention and he did not examine the documents and respondents have appealed.

Lewis F. Powell, Jr.:

Mr. Cramton?

Roger C. Cramton:

Sir.

Lewis F. Powell, Jr.:

I am looking at page 46 of your brief which sets forth the Freedom of Information Act, subsection B thereof.

Lewis F. Powell, Jr.:

I wonder whether you think that provision of does not take out of the requirement for a de novo hearing all together situations where the executive has issued an order of the character involved in this case?

Roger C. Cramton:

It says, it does not apply to matter, is that specifically required by Executive order and I think that falls clearly within the language of this case (Voice Overlap) an exemption despite arguably seems to me with give rise to somewhat more discretion on the Court because it refers in its own language to the procedures used by the Courts in civil litigation on discovery.

Lewis F. Powell, Jr.:

Okay.

Does the de novo provision applied at all to the two types of exemption you relying on this case?

I do not know I am asking you for (Voice Overlap).

Roger C. Cramton:

I think it applies to the entire Act, but it has to be read in light of the language of the preferred exemptions and desire of Congress to protect certain material from public disclosure?

Warren E. Burger:

Well, I have read these provision as meaning that if it dell within number one of B, that was the end of the matter and no one (Voice Overlap).

Roger C. Cramton:

That is the government’s view.

Now we do (Voice Overlap)

Potter Stewart:

Who is to determine whether it falls within 1?

Roger C. Cramton:

We do concede that the government by affidavit has and surrounding circumstances has to make a showing that at least you are in the area of state secrets.

For example, if the respondent has sought documents dealing with hog prices on the Chicago marketing put together by the department of Agriculture, there might be some judges who would be properly skeptical of whether or not state secrets were involved and the Court could properly require a more detailed affidavit which would convince the Court of whether or not you were in the core area that the privilege was designed to protect —

Thurgood Marshall:

And at the same time —

Roger C. Cramton:

(Voice Overlap) the interest you’re trying to protect in the process of showing whether or not the privilege is applicable.

Thurgood Marshall:

And on the hand or the government can say this whole that is involved in Atomic Energy research and then that would be it?

Roger C. Cramton:

No the Court can require more than that and you know more than that.

Amchitka test blast involving —

Thurgood Marshall:

How much more in your —

Roger C. Cramton:

Is the documents prepared by Dr. Kissinger and the National Security Council and so on. You know a great deal more and you know that all of the information that relates to environmental matters which bushel baskets of it has already been made public.

What the respondents want are the advice given to the President in connection within the secret underground military weapon’s test and the military secrets that are involved in those documents.

And I would like to turn briefly (Voice Overlap)

William O. Douglas:

But suppose you get into B (5), the inter agency documents you find a split among the experts as to whether or not this is relevant to the military aspect to the problem or not?

Roger C. Cramton:

Well exemption 5 is designed to protect the decisional deliberative process of government itself and make sure that deciders get candid and frank advice just as this Court needs it among itself and with its personnel.

Now it’s argued that all of the documents involved in this litigations fall within exemption 5.

Under Secretary Irwin’s affidavit states that these documents were prepared and used solely for transmittal to the President as advice and recommendation and respondents concede that that’s the case.

Congresswoman Mink request for the document was to the President and she said she wanted the reports and recommendations that he had received.

The argument is, that the District Court should look at this reports and recommendations of advice and try to separate out the factual material from the judgmental and policy material.

Well, in first place I do not think that can be done and particularly in the context of Presidential decision making.

He who has headed the heads of agencies and the most trusted advisers being forced to briefly condense their facts and arguments so the President can decide an important national issue.

The selection of facts, the organization of facts, the arguments and the relationship arguments is fully as much of the policy making process as a selection of facts and arguments in a brief is part of the art of advocacy.

Roger C. Cramton:

So the separation in the light of this case it seems to me to point to the entire documents clearly falling within the Court area of privilege.

Now the decisions say that where you have low level routine factual reports that those can be made available and the District Court can properly separate out judgmental or policy aspects that are usually found in introductory paragraphs for conclusions, but you do not have that kind of a case here.

Whatever maybe done in cases that deal with such matters and scientific testing of VA hearing aids or with the routine appraisal of property by a government appraiser or with the inspection of the physical wreckage of a plane by government mechanics whatever maybe done in those cases in terms of a more detailed affidavit or even in some instances an in camera inspection is not appropriate here where we have the highest level of decisions, where we have a special matter of great importance, complexity and delicacy in which falls right in the core area that Congress was trying to protect with exemption 5.

Warren E. Burger:

And if I remember the Reynolds case correctly the government had the choice, was put to the choice by the Court.

That was an airplane crash case where there were lot of military equipment, sites and various things.

The Court put them up to the choice of either defaulting on the judgment or yielding the information, was that correct?

Roger C. Cramton:

Mr. Chief Justice if I may correct you, I think that it is not.

In Reynolds case, government affidavits and government affidavits alone asserted that, that plane had been in connection with the testing of a military airplane that was involved secret electronic equipment.

That affidavit was accepted on its face by this Court and this Court went on and said that on that kind of showing with the surrounding circumstances, the aircraft investigation report would not be made available even to the judge in camera (Voice Overlap)

Warren E. Burger:

Yes, but my point is that government have the choice of either, wasn’t the government required then to submit in terms of liability?

Roger C. Cramton:

The Court actually went on and held that with the since the Tort Claims Act had waved the liability of the United States only under such conditions as it is send to but you could not penalize the government where it was defendant on the Tort Claims Act, but in the civil litigation, in the criminal prosecution situation were the same question arises that is the result that usually reached.

That is the government is penalized as a litigant because it does not supply information that the Court claims is relevant and the government then has the option, unlike the freedom of Information Act situation of losing the litigation or abandoning it and preserving a secrecy of information that it thinks should not be divulged in the public interest.

Potter Stewart:

Mr. — General Cramton, as I thought in advancement in this case and we were faced here with the matter of construction of a statute and only that.

No constitutional questions and no questions of evidence law or Federal Common Law, but just for the construction of the statute and in that connection I wonder if you tell me the word Section on page 46 of your brief, does Section mean the entire freedom of information Act?

It’s a little confusing to me where it says and I following — (Voice Overlap)

Roger C. Cramton:

Yes, it’s Mr. Justice 5, it may require part two.

It’s an exemption from all the provisions of the Act.

Potter Stewart:

Of the whole Act?

Roger C. Cramton:

If I might clarify —

Potter Stewart:

Section means the entire Act?

Roger C. Cramton:

That’s right, and if I may clarify your comment, constitutional questions is involved here only in the sense that they provide a backdrop for the interpretation of the statute.

Common law questions are involved in connection with exemption 5, because exemption 5 by its very language refers to whether or not a private party in a hypothetical litigation with the government would be able on discovery to get that information from the government.

The rule is that it would if information can be made available.

My time has expired.

Warren E. Burger:

And now one other question if I may, the — going to the last line in the Act, this Section is not authority to withhold information from Congress.

That declares I take it simply that this Act is not directed at the congressional powers to secure information which they usually do by the subpoena process, I take it?

Roger C. Cramton:

That is right.

I did not see fit to stress or reply to respondent’s argument that congressman has special rights under this Act.

It is clear that they do not.

The rights of the Act extend to any member of the public.

Roger C. Cramton:

The language in paragraph C on page 47 is clearly a savings clause.

It’s just as we have — this Act has nothing to do with the powers of Congress as an institution to compel information and it surely is a somewhat I think even shocking notion that an individual Congressman could compel information either from the government or from other private citizens just on his own say so.

Warren E. Burger:

Well, when a member of Congress comes into the court, he comes in just as in the other citizen?

Roger C. Cramton:

That is right.

The law treats all equally.

Warren E. Burger:

This is not an action authorized by some committee, is it?

Roger C. Cramton:

No the Congress is not involved in any institutional capacity.

The respondents are acting in their individual capacities only as “any persons under the Freedom of Information Act.”

Warren E. Burger:

Mr. Clark.

Ramsey Clark:

Mr. Chief Justice and may it please the Court.

I think in fairness to the court below, I should point to a few facts that primarily showed there was an urgency at the time of considerations below that do not obtain now and then explain the posture of the case.

I say that particularly in connection with the last question.

Actually, the Court of Appeals begun its opinion, in its opinion with the observation that it didn’t answer all the questions before it.

It was dealing with a motion for summary reversal.

The case in a sense began with a newspaper article.

I think it is very important to the court to consider it in the light of the New York Times case, because it is closely related.

You may recall the Solicitor General in the New York Times argument referring to the fact that there could have been a case under the Freedom of Information Act to have obtained those documents and in a sense this case may tell us whether the Elseberg way, so to speak.

Is the only way available or there is a judicial sanction that can be used to cause a disclosure of information.

On July 26, 1971 there was an article in the Washington Star that said that two agencies, the Department of Defense and the Atomic Energy Commission them were urging the going forward with this Cannikin Amchitka megaton detonation which was then scheduled for October that year.

It will on to say that there was a controversy within the government that five agencies were opposing the test and described them as being the process state United States Information Agency, The office of Science and Technology, the Council on Environmental Quality and The Environmental Protection Agency.

Then as you can from the record it alluded briefly to the reasons now.

Now when that came forth congressmen who were particularly concerned about the test and primarily people from Hawaii and California, because there had been earthquakes from seismic action in the allusion chain that had caused deaths and great damage in Hawaii and in California, immediately sought to determine what the nature of these reports was, what facts they were within these reports, because as Congress women and men they had two actions coming up before them in the immediate future.

The Authorization Act for the Atomic Energy Commission was before them in July that year and in August and the Appropriations Act for that agency and for this very test.

Now it was in that urgent context that this went before the Court.

The suit was filed on August 11th.

It was disposed off by partial dismissal and partial summary judgment for the government on August 27th.

The Court of Appeals expedited as did the court below in accordance with the mandate of the Act itself and the situation as well and heard arguments in the late September, mid the late September and decided the case on October 15.

Now, as I said at the beginning it began, it’s summarily reversed, but it began with the observation that after considering the arguments of counsel and these covered the entire range of the complaint and the responses in the motions for summary judgment that both the parties had filed, that this case was inappropriate for summary disposition and that it was not going to summarily dispose of the case, but it wanted in a practical way to give some guidance to the District Courts so there could be some expedition and review this information to see if it could be submitted to the Congress before the test.

And it is in that way that the case went back down and there were only two areas in which the Court of Appeals summarily disposed of the issues before it.

First, it said that classification by association is erroneous.

Ramsey Clark:

Now all it had before it was the Irwin affidavit.

All it knew about the documents was what was said in the Irwin affidavit.

When you look at the Irwin affidavit, you’ll see that one document, the impact statement so called was as a matter of law publicly, the Congress required that it be published; that each of the other line was restricted as Secret, Top Secret or under the Atomic Energy Commission as restricted data.

Now when you see what happened in a parallel case with these very documents, it is now argued we should not be able to see at all. You’ll find that they have been reviewed.

Three were partially disclosed in a collateral case of these very documents that the government is now arguing we shouldn’t be able to see, were disclosed to the plaintiff in the environmental case, the nuclear responsibility case.

Six were permitted, as I say permitted in the sense that the government conceded that the District Court could review them, here it’s in camera.

Here it says that shouldn’t happen.

August 6th, that were reviewed in the camera, in camera the six of these ten.

Five were specified in the Irwin affidavit.

It didn’t say they are partially classified, they are Top Secret; it said they are classified Top Secret or Secret as the case may be, yet these were reviewed, five of these.

Two were internally insofar as the record in that case, which is before the Court shows, were entirely classified Secret or Top Secret and they were reviewed by the Court below, the very thing that is not permitted here.

Now all the Court of Appeals said was “if there is matter within these documents that can be separated without distorting its meaning, if it is not so inextricably interwoven, the phrase below, that it can be separated, do it.

That’s what it directed summarily by summary disposition, the District Court to do.

And it said that if it is necessary, then you should review in camera to determine that these two issues, whether or not, they are documents attached to other documents and classified as was the case in fact, although the Irwin affidavit did not so and classified merely by association and the Court of Appeals says it never had that concession before it, that has been made here.

The concession was made in footnote 4 of the petition for the writ of certiorari here, that the mere attachment of an unclassified document to a classified document, even though specified in 10501 Executive Order to permeate to the document so attached with the highest classification for purposes of the Freedom of Information Act, does not become so classified.

And then the other part is whether there are components within a single document, that would not be classified and that is all that the Court of Appeals has done and it has asked the Court below to look at these in camera.

Now I think —

Potter Stewart:

I thought it was considered, the Court of Appeals might have done and goes certainly considerably beyond the language of the exemption and be one it is not, which would seem, at least on the face of the literal words that the Court should limit its inquiry to determining whether these matters were specifically required by Executive Order to be kept secret in the interest of the National defense or foreign policy.

Will that be?

Would you agree?

Ramsey Clark:

No, I wouldn’t —

Potter Stewart:

I have accurately read the Executive.

Ramsey Clark:

Well, I think the key to it though is the Court of Appeals’ opinion.

It expressly says that it is not going to resolve by summary disposition, the test to be applied under exemption number one.

We had urged to the District Court that the test be the test that President Eisenhower and and President Kennedy and President Johnson and President Nixon had all prescribed for executive privilege when pled before the Congress and that is that the President caused an independent review of each document and each part of each document is to which the privilege was to be extended, be made and then it would be classified on that basis.

The government roughly below said — that there is no power in the Court to review it.

We say it is classified, that’s it.

The Court has no power to determine whether we are correct or not or whether what we say is true.

Potter Stewart:

Well that’s what the language seems to say, isn’t it?

Ramsey Clark:

No, I think not, I think when it said (Voice Overlap)

Warren E. Burger:

What does it mean if it does not mean that Mr. Clark?

Ramsey Clark:

Well, I think first the Act clearly gives jurisdiction to the Court to enjoin a government agency from refusing to disclose, it requires (Voice Overlap)

Warren E. Burger:

As a general proposition?

Ramsey Clark:

As a general proposition, yeah.

Warren E. Burger:

But then this is a specific exception, is it not? (Voice Overlap)

Ramsey Clark:

— There are nine specific exceptions.

Warren E. Burger:

Well, we are only concerned now about one.

Ramsey Clark:

Well, 1 and 5 are both (Voice Overlap).

Warren E. Burger:

One primarily.

When it says this section does not apply to matters that are and then describes what is under number 1?

Ramsey Clark:

I think it can only mean one thing and I really cannot believe that the government would content otherwise.

It only means that this Section does not require or give the power to the Courts to enjoin disclosure where it is determined by the Court as a matter of fact, that one of these exemptions applies, otherwise the Act has no meaning, has no value.

All the Court ever — all the authority ever has to do is say number 4, it’s trade secrets.

You cannot see whether it’s trade secrets or not.

You do not know what it is, you have to take their word for the veil of secrecy and the Executive Branch falls at that level and there is no capacity, no power in the judiciary if that Section means that these nine areas have — are completely exempted.

It just means that the Court should decide and if it decides that the material or the matter as it says, is in case specifically required then they cannot compel disclosure, but the Court must decide, not the executive.

Potter Stewart:

But under that language, what are the limits of the Courts’ decision and that was my question.

I should suppose that it could be read that if you find that this has been specifically required by Executive Order be kept secret in the interest of National Defense or foreign policy, that’s the end of the Court’s inquiry, even though they —

Ramsey Clark:

There were — there are several things that should be said (Voice Overlap)

Potter Stewart:

I think that’s what the language seems on its face to say —

Ramsey Clark:

I think not necessarily matters does not mean all of an entire document.

You may have something, the thickness of a telephone book, you frequently do in this area and maybe one paragraph in a whole thing, as I think the government conceded, clearly this could not mean and that’s precisely what the Court of Appeals has pointed out and the only reason it did it was because of the ambiguity of the Irwin affidavit.

That Irwin affidavit, in some places would say this document is separately classified Top Secret. Notice it would merely say this is classified Top Secret.

From that, on the basis of our knowledge we assumed that it was classified, perhaps, by association and we asked the Court below, the Trial Court and the Court of Appeals to face that issue if it is classified.

If the document itself is not classified secret, but it is attached to one that is, are we not permitted to get it under this Act and the government is now conceded in that situation that we are (Voice Overlap)

Potter Stewart:

Perhaps, the government has conceded more than it needed to do under this language?

I suggest that the way this is worded, that it could be well argued that the limits of the Court’s inquiry with respect to the exemption number one under B is whether or not it has in fact been required by the executive to be kept secret, no matter if it’s the District of Columbia telephone book?

Ramsey Clark:

I really, I really think not.

I think even if that’s true that the new Executive Order 11652, which by the way, became the prevailing along this area two days after petition for certiorari in this case was granted required this very paragraph by paragraph where it generally contemplates this paragraph-by-paragraph classification, which is the only thing that makes any sense.

Our contention below has been that even 10501 is not the specific requirement that was contemplated and the Attorney General’s memo that was promulgated in June of 1967, this Act became effective on the 4th of July, which is an appropriate day because I think this Freedom of Information is essential to freedom in a democratic society.

Potter Stewart:

What regular word weigh in your argument as I understand that on the adverb specifically, don’t you?

Ramsey Clark:

Yes, I do.

I really don’t think this issue is before this Court at this time unless it wants to consider matters the Court of Appeals didn’t consider because the Court of Appeals specifically says “it is not going to dispose of that by summary disposition” I think very wisely before the very reasons that the Chief Justice in the New York Times case said that we don’t have the facts.

Let’s get the facts and here you do not have the urgency in this Court now and this can go back and the Trial Court can look at it and it can make, after it sees these document, that judgment.

Now, the idea that Courts cannot look at documents classified secret is beyond my comprehension at this time.

I thought they brought 47 volumes into this Court and into the Courts below on the New York Times case.

We have seen throughout the wiretap area that the Solicitor General come in within (Inaudible) Taglianetti and other cases seeking in camera inspection.

We have seen the same thing in the Grand Jury cases, then it’s the US where they seek the Court ex parte by an in-camera proceeding and I am frank enough high on in-camera proceedings, but that’s all this Court of Appeals judgment yields us at this time.

I do not think it (Voice Overlap).

Potter Stewart:

You referred this on constitutional cases with you, — am I wrong in thinking that the only issue in this case is the meaning of a statute enacted by the Congress of the United States that there are no constitutional issues here at all, am I wrong about that?

Ramsey Clark:

I think that there are clearly constitutional issues in those parts of the case that the Court of Appeals specifically declined to pass on by a way of summary disposition.

I think that appropriately this Court would only consider the statute because I think that, that is all that the Court of Appeals did, but if you want to go into the general problems, Executive Privilege and that has not been raised here, it has not been thoroughly briefed and I think in this administration it would be a serious mistake, why that can’t be done.

I think the District Court is going to have to do it.

I think it’s raised by the pleadings, but I think that the Court of Appeals because it had before the motion for summary reversal wanted to get this thing moving.

As a matter of fact, the blast went off on November 6th and at that time we had not been able to obtain the information.

It’s very unlikely that the Congress there, there are 33 plaintiffs here do a Congress, women and men could have done anything about it.

Potter Stewart:

And I am not wrong, as I understand what you have said in understanding that this is a matter of the construction of an act of Congress, is that what we have?

Ramsey Clark:

I think it’s a matter of proper judicial administration, that’s right.

I think it’s a matter of jurisdiction, this Court has jurisdiction over the whole case and issues at the Court of Appeals, specifically declined to pass are before you if you want to pass on them.

I think it would be unfortunate to get into them.

I think that all the Court of Appeals said was that “when you claim an exemption under 1 or 5, it is imperative that the parts that can be severed from that because the purpose of this Act to reveal as much information for the public as can possibly be done.

Warren E. Burger:

But doesn’t the new Executive Order now meet that problem of a new Executive Order that you have just referred to, Mr. Clark that was obviously intended to give more flexibility to go through a document and if there is a lot of material that’s perfectly innocuous as there is bound to be in any classified document that, that can be severed out.

With that, isn’t the problem as to the truly classified material still going to remain under Section 1 or paragraph one with the executive.

Ramsey Clark:

Well, I think that the new Executive Order, if implemented as I assume, it will be, will narrow the range of review that the Court will have to make, but I think ultimately that when it comes before the Court, it comes before the Court very infrequently.

I don’t believe there have been 40 cases at this time that it raise this issue and when the government pleads exemption for matters under exemption number 1 because they involve military or diplomatic secrets, then the Court will have to review first to see if there is matter combined in there that should have been weaned out under the new Executive Order, but wasn’t and second, were they arbitrary and capricious in their judgment.

Now that issue is not really proper before this Court at this time because of the nature of the summary disposition.

William J. Brennan, Jr.:

Are you suggesting Mr. Clark that perhaps, this whole case in this Court is premature?

Ramsey Clark:

Well I am, we opposed the cert.

I think —

Warren E. Burger:

On that ground?

Ramsey Clark:

Your Honor, we —

Warren E. Burger:

On prematurity —

Ramsey Clark:

We — this was a summary disposition and we opposed it as being something that — we didn’t get all the — we wanted below either, but we saw in our reason to counter petition because we thought our opportunity, it was still viable in the Court below.

So yes sir, we did on that ground, but I think it would be wrong to dismiss as improvidently granted at this time.

I think the Court of Appeals is entitled to an affirmance, I think what is done here is very minimal.

William J. Brennan, Jr.:

If we dismiss this as improvidently granted that would leave that judgment of course to stand undisturbed, wouldn’t it?

Ramsey Clark:

But I think both the — we know the problems in judicial administration here and I think both the Court of Appeals and the District Court are entitled to hear review on what — I don’t think you should go, it’s my judgment of sound judicial administration beyond what the Court of Appeals did.

And all the Court of Appeals really did is said look at these documents and where there are documents, first if they were severed — severable sever them and there were some, but the Court of Appeals never got to see them.

The Congressmen never got to see them, the District Court in this case never got to see them.

They were severed and then in another case, they came out.

And then well within a document, there is material that severable do that.

Now that’s precisely what the judge Heart did.

He went through documents in the nuclear responsibility case that were both classified Secret or Top Secret as to which there was an exemption number 5, the decisional processes of the Executive Branch claim and he extricated some and disclosed it, required its disclosure and he left other secret.

He made — in other words, he performed the judicial function that I think this act requires.

He tried to matter de novo.

He placed the burden on the government of showing the exemption.

I don’t think the burden on the government means any kind of showing the exemption.

If the exemption is totally excluded by the side of the executive or any consideration of the matter before them.

Warren E. Burger:

Mr. Clark, I realize that subdivision 6 is not relevant in this case on page 46 paragraph 6, I think you would call it under B, but suppose the personnel and medical file of some individual were involved and there were some matter which he did not want disclosed.

Is it your view that a district judge should examine the medical file and see whether this should be disclosed or not or is the medical file of the treatment of the person completely private?

Ramsey Clark:

Well, at the very least, there would be a judicial responsibility to look and see if this is just a medical file or if it is a file that says medical on it, and it’s got all the kind of matter in it.

Warren E. Burger:

But what if there is an affidavit of the commander of let us say one of the military hospitals that all the documents inside of this file relate to the diagnosis and treatment of the named subject and there is no matter here except that and it is of the utmost privacy, some such statement, then is a district judge under this Act to look at and see if the doctors telling the truth or (Voice Overlap)

Ramsey Clark:

I think that is absolutely yes.

First, not just because we have an advisory system and that really relates to personal privacy.

I felt very strongly about that exemption when the Act came in but second, really this is part of a system of checks and balances, that’s what the statute is about.

Warren E. Burger:

But the Act is here now, it’s passed and I still have difficulty in getting away from the language this Section does not apply.

Ramsey Clark:

By the very nature of that, we haven’t to that — this Section is not, but it says which would constitute a clearly unwarranted invasion of personal privacy.

A doctor is supposed to make that decision or a Judge is supposed to make that decision.

Suppose it is quite important to a plaintiff in a case; suppose that this individual as to whom this file would relate has done something (Voice Overlap).

Warren E. Burger:

Well, I am not raising this question in terms of getting this information in a lawsuit involving some injuries.

Warren E. Burger:

I am talking about these plaintiffs in this case or plaintiffs like these asking that the information be made public, not as evidence in the lawsuit, just as a matter of general public interest?

You suggest that —

Ramsey Clark:

(Voice Overlap) I think the test is whether it would constitute a clearly unwarranted invasion of personal privacy and I think that’s a judicial test to be made under the Act by the judiciary.

I don’t think that (Voice Overlap).

Warren E. Burger:

Then B, this Section does not applied, doesn’t have very much meaning?

Ramsey Clark:

I think it has meaning.

I think it tells you exactly the material that the Court cannot compel disclosure of, but I think that the Act tells you that the Courts ought to determine what are the point of the matter in question is that, it falls under one of those exemptions.

I think if that’s not true, then the Act really has no value because of labeling can read the Act down of operation.

All you have got to do, all the executive has to do and we’re talking about checks and balances and we are talking about something that Congress has done and I don’t know another area where the Congress has acted, where the Courts have not performed the judicial function that’s essential in that situation.

Harry A. Blackmun:

Mr. Clark, doesn’t this get us right back to the questions that Justice Stewart has been asking?

You referred a little while ago to before of having to do a trade secrets and that clearly someone has to determine what a trade secret is and you say it is a District Court.

B (1) speaks of specifically required by Executive Order and isn’t that just as far as the Court has to determine the situation whether it is or is not specifically required.

I think this is Justice Stewart inquiry of you.

But as I understand it you want to go one step further, and say not only whether it were specifically required, but whether it was in the interest of the National Defense or foreign policy.

You want to go into that lower level, lower or further inquiry, am I correct in —

Ramsey Clark:

Well I see it a little different.

I think I don’t want to go that far by one step, simply because the Court of Appeals is specifically in its opinion declined to make that adjudication by a way of summary disposition.

All it has said and I think it follows necessarily is that if there is a document that is not classified, but is attached to another document, then it would, I suppose you could say inherently be incapable of having been specifically designated.

Somebody may have slapped the face of a poster on, but if the Act wanted for disclosure compatible with these key interests here.

William J. Brennan, Jr.:

Well, I suppose Mr. Clark one of the key is here is in Section 3 anyway, isn’t it?

What the Court supposed to do as I read this, is order the production of any agency records improperly withheld from a complainant and in order to determine whether it’s improperly withheld, that the claim is it falls under B (1) or anyway from B (1) to B (9).

The judges have got to decide whether the particular plaintiffs satisfy one denying and if they say do not, then they have been improperly withheld, is that it?

Ramsey Clark:

That’s my understanding of it, yes Your Honor.

William J. Brennan, Jr.:

And then in —

Ramsey Clark:

I think they have to look at the papers to do that very frequently.

William J. Brennan, Jr.:

But — and the determination of whether something is improperly withheld, I guess, is this what the next sentence means; in such a case, the Court shall determine the matter de novo and the burden is on the agency to sustain its status?

Ramsey Clark:

It’s the only meaning that I can read out of it, I think in connection with Justice Blackmun’s question that there are two steps to number one but I don’t think those were steps were considered or adjudicated by the Court below or should be by this Court, but I think first, it determines whether it was specifically required and second, whether it was clearly erroneous, at least that would be the standard that I proposed but the Court of Appeals didn’t feel it necessary and I think wisely so to determine that test at that time.

Warren E. Burger:

Mr. Clark, turning to number three, there are two of these which have a qualification that the other paragraphs do not have.

Number one has specifically required by the executive, number three has specifically exempt by the statute.

On one case, it’s the Congress speaking by statute, in other case, the executive by order.

Warren E. Burger:

Do you think that one and three are different in this regard from the others?

Ramsey Clark:

No, I think (Voice Overlap)

Warren E. Burger:

What inquiry would the district judge make on a matter if it’s specifically exempt from disclosure by a statute?

Ramsey Clark:

Well I think the analogy here would be, if the executive came in and said here is the statute Your Honor and cites the statute, therefore you can’t look at this matter.

You have to take my word (Voice Overlap).

Warren E. Burger:

But if suppose the statute had said that all medical records of any military hospital shall be exempt from disclosure?

Ramsey Clark:

Then I think the judge would have to look and see whether there is anything in the file or the military records or medical records from military hospital.

I don’t think that in our advisory system or particularly in a place of critical checks and balances that we have here because obviously if you can put a stamp on these things and preclude judicial review, the Act has no value in terms of checks and balances.

I think that the Court would have to look at that file and determine in its work.

But it’s the function that is imposed upon the judiciary by this Act.

So we would urge affirmance.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.