Federal Open Market Committee of the Federal Reserve System v. Merrill

PETITIONER: Federal Open Market Committee of the Federal Reserve System
RESPONDENT: Merrill
LOCATION: C and P Telephone Baltimore Headquarters

DOCKET NO.: 77-1387
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 443 US 340 (1979)
ARGUED: Dec 06, 1978
DECIDED: Jun 27, 1979

ADVOCATES:
Kenneth Steven Geller - for petitioner
Victor H. Kramer - for respondent

Facts of the case

Question

Media for Federal Open Market Committee of the Federal Reserve System v. Merrill

Audio Transcription for Oral Argument - December 06, 1978 in Federal Open Market Committee of the Federal Reserve System v. Merrill

Warren E. Burger:

We will hear arguments next in Federal Open Market Committee v. Merrill.

Mr. Geller, I think you may proceed when you are ready.

Kenneth Steven Geller:

Thank you Mr. Chief Justice, may I please the Court.

This case arises under the Freedom of Information Act, but unlike the other cases this court has considered involving the Act, here the government is not contending that certain agency documents are not disclosable to the public.

Well, we are contending is that the Act grants the District Court discretion in an appropriate case to delay the public release of agency documents for a reasonable period of time, just like in civil discovery, where the immediate of those documents would prevent or impair the effectuation of an important governmental policy.

We also contend of course that this is an appropriate case for the exercise of that discretion.

And the particular documents and agency involved here are the so called Domestic Policy Directives.

William H. Rehnquist:

Let me ask you a question Mr. Geller about the discretion contention.

Here the District Court simply required the production of the documents.

Kenneth Steven Geller:

Yes.

William H. Rehnquist:

So I take it your contention is that the discretion could only be exercised in one way in this particular case.

Kenneth Steven Geller:

No, the District Court took the position that it had no discretion, because the Act required immediate disclosure.

It viewed the Act does not allowing it to weigh the interests of the government in a temporary withholding of the documents against the interest of the public in gaining immediate access to those documents.

It’s our position that the Act does grant the District Court that discretion, and indeed we assume that if this Court adopts that submission, the appropriate disposition would be a remand to the District Court for determination whether to exercise that discretion in this case.

William H. Rehnquist:

So, you don’t claim that it comes under any of the exemptions?

Kenneth Steven Geller:

No, we do, we claim that it falls clearly within Exemption 5 and we construe Exemption 5 to a Court at District Court discretion as I have said in an appropriate case to decide whether or not to release otherwise disclosable documents where the government is made a showing of harm from the immediate release.

Potter Stewart:

You said exclusively on Exemption 5.

Kenneth Steven Geller:

That’s correct.

Potter Stewart:

Not on 4 or 8.

Kenneth Steven Geller:

No, the only exemption we’re relying on this Court is Exemption 5.

William H. Rehnquist:

The section that you are dealing with the exemptions beginning this section does not apply to matters that are, and then 5 says inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than the agency and litigation with the agency.

Kenneth Steven Geller:

Yes.

William H. Rehnquist:

Now, where does the District Court’s discretion stand from?

Kenneth Steven Geller:

We believe it comes from the language would not be available to a party in litigation with the agency, which we think what Congress intended was to mirror the practice under civil discovery.

I think this Court is held that on several occasions.

Now I hope to get to that a little later in the argument.

And of course, since civil discovery the court would get engage frequently in a balancing process when it’s not dealing with documents that are subject to an absolute privilege or documents not subject to any privilege whatsoever, there is a whole middle ground in which you has to weigh the competing interests.

We claim that the same analysis should apply under the Freedom of Information Act.

Potter Stewart:

Mr. Geller, why we have to interrupt it, there is a stay order still in effect.

Kenneth Steven Geller:

The stay order is still in effect, that’s correct.