John Doe Agency v. John Doe Corporation Page 16

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Media for John Doe Agency v. John Doe Corporation

Audio Transcription for Oral Argument - October 02, 1989 in John Doe Agency v. John Doe Corporation

Milton Eisenberg:

That is the finding that they are making.

John Paul Stevens:

--No, that's not.

They were thus not (b)(7).

Milton Eisenberg:

Your Honor, if it has--

John Paul Stevens:

So they were not compiled by anybody is what their holding is.

Milton Eisenberg:

--And that is why I think context and posture is so important.

There was no argument in the Court of Appeals by the government--

Well, I understand your point there.

Milton Eisenberg:

--that they'd been, so the court--

John Paul Stevens:

But, but their reasoning is that since they were compiled by a non law enforcement agency for a non-law enforcement purpose, and that' all the record shows, that's the end of the ball game.

That's what they say.

Milton Eisenberg:

--On this record, in light of these arguments and the government's position in the Court of Appeals, yes.

Not for all purposes, under all circumstances, in other cases where a different record is made.

Antonin Scalia:

This is a good deal less significant than we thought it was, I suppose, when we granted cert--

[Laughter]

Milton Eisenberg:

I, I, I... I'm honored--

Antonin Scalia:

We are just reviewing whether they were, indeed, gathered, right?

You are willing to say you can gather them; they just weren't gathered here.

Is that it?

Milton Eisenberg:

--Your Honor, I am honored to be here at the first argument of the first day of the Court's new term, but I have no idea why this case should lead off the Court's new term.

[Laughter]

It has no significance on the record in this case as the construction of these key words.

We point out in our brief that the government demeans Professor Howe's compilation of the Holmes-Laski Letters in his famous work by comparing it to what the FBI did in this case when it removed custody of these documents from the DCAA.

But let us, let us assume for a moment that instead of publishing this historic work, what Professor Howe did was this: He learned that someone else was on the trail of Justice Holmes' letters.

So first, he directed Justice Holmes not to disclose them to someone else or anybody else.

And then he appeared in Justice Holmes' chambers and removed the letters from Justice Holmes so that no member of the public could thereafter have access to them.

We might call such high-handed conduct by many names, but I don't think any of them would be compilation.

Without sugarcoating it, that is just what the FBI did in this case.

By doing that, they thwarted the administrative process in this... in all FOIA cases, and they did it without any of the justifications in an executive order, such as apply to Exemption 1 cases, which specifically authorize that kind of process.

After an FOIA request is filed, by the explicit terms of the executive order, a document may be classified or reclassified.