410 U.S. 73 (1973), 71-909, Environmental Protection Agency v. Mink

Docket Nº:No. 71-909
Citation:410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119
Party Name:Environmental Protection Agency v. Mink
Case Date:January 22, 1973
Court:United States Supreme Court

Page 73

410 U.S. 73 (1973)

93 S.Ct. 827, 35 L.Ed.2d 119

Environmental Protection Agency



No. 71-909

United States Supreme Court

Jan. 22, 1973

Argued November 9, 1972




Respondent Members of Congress brought suit under the Freedom of Information Act of 1966 to compel disclosure of nine documents that various officials had prepared for the President concerning a scheduled underground nuclear test. All but three were classified as Top Secret or Secret under E.O. 10501, and petitioners represented that all were inter-agency or intra-agency documents used in the Executive Branch's decisionmaking processes. The District Court granted petitioners' motion for summary judgment on the grounds that each of the documents was exempt from compelled disclosure by 5 U.S.C. § 552(b)(1) (hereafter Exemption 1), excluding matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," and § 552(b)(5) (hereafter Exemption 5), excluding "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." The Court of Appeals reversed, concluding (a) that Exemption 1 permits nondisclosure of only the secret portions of classified documents but requires disclosure of the nonsecret components if separable, and (b) that Exemption 5 shields only governmental "decisional processes" and not factual information unless "inextricably intertwined with policymaking processes." The District Court was ordered to examine the documents in camera to determine both aspects of separability.


1. Exemption 1 does not permit compelled disclosure of the six classified documents or in camera inspection to sift out "non-secret components," and petitioners met their burden of demonstrating that the documents were entitled to protection under that exemption. Pp. 79-84.

2. Exemption 5 does not require that otherwise confidential documents be made available for a district court's in camera inspection regardless of how little, if any, purely factual material they contain. In implying that such inspection be automatic, the Court of Appeals order was overly rigid, and petitioners should be afforded the opportunity of demonstrating by means short of

Page 74

in camera inspection that the documents sought are clearly beyond the range of material that would be available to a private part in litigation with a Government agency. Pp. 85-94.

150 U.S. App. D.C. 233, 464 F.2d 742, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and POWELL, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 94. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 95. DOUGLAS, J., filed a dissenting opinion, post, p. 105. REHNQUIST, J., tool no part in the consideration or decision of the case.

WHITE, J., lead opinion

[93 S.Ct. 830] MR. JUSTICE WHITE delivered the opinion of the Court.

The Freedom of Information Act of 1966, 5 U.S.C. § 552, provides that Government agencies shall make available to the public a broad spectrum of information, but exempts from its mandate certain specified categories of information, including matters that are "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," § 552(b)(1), or are

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency,

§ 552(b)(5). It is the construction and scope of these exemptions that are at issue here.

Page 75


Respondents' lawsuit began with an article that appeared in a Washington, D.C. newspaper in late July, 1971. The article indicated that the President had received conflicting recommendations on the advisability of the underground nuclear test scheduled for that coming fall and, in particular, noted that the "latest recommendations" were the product of "a departmental under-secretary committee named to investigate the controversy." Two days later, Congresswoman Patsy Mink, a respondent, sent a telegram to the President urgently requesting the "immediate release of recommendations and report by inter-departmental committee. . . ." When the request was denied, an action under the Freedom of Information Act was commenced by Congresswoman Mink and 32 of her colleagues in the House.1

Petitioners immediately moved for summary judgment on the ground that the materials sought were specifically exempted from disclosure under subsections (b)(1) and (b)(5) of the Act.2 In support of the motion, petitioners filed an affidavit of John N. Irwin II, the Under Secretary

Page 76

of State. Briefly, the affidavit states that Mr. Irwin was appointed by President Nixon as Chairman of an "Under Secretaries Committee," which was a part of the National Security Council system organized by the President "so that he could use it as an instrument for obtaining advice on important questions relating to our national security." The Committee was directed by the President in 1969

to review the annual underground nuclear test program and to encompass within this review requests for authorization of specific scheduled tests.

Results of the Committee's reviews were to be transmitted to the President "in time to allow him to give them full consideration before the scheduled events." In ¶ 5 of the affidavit, Mr. Irwin stated that, pursuant to "the foregoing directions from the President," the Under Secretaries Committee had prepared and transmitted to the President a report on the proposed underground nuclear test known as "Cannikin," scheduled to take place at Amchitka Island, Alaska. The report was said to have consisted of a covering memorandum from Mr. Irwin, the report of the Under Secretaries Committee, five documents attached to that report, and three additional letters separately sent to Mr. Irwin.3 Of the

Page 77

total of 10 documents, [93 S.Ct. 831] one, an Environmental Impact Statement prepared by AEC, was publicly available and was not in dispute. Each of the other nine was claimed in the Irwin affidavit to have been

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 and have been used for no other purpose.

In addition, at least eight (by now reduced to six) of the nine remaining documents were said to involve highly sensitive matter vital to the national defense and foreign policy, and were described as having been classified Top Secret or Secret pursuant to Executive Order 10501.4

Page 78

On the strength of this showing by petitioners, the District Court granted summary judgment in their favor on the ground that each of the nine documents sought was exempted from compelled disclosure by §§ (b)(1) and (b)(5) of the Act. The Court of Appeals reversed, concluding that subsection (b)(1) of the Act permits the withholding of only the secret portions of those documents bearing a separate classification under Executive Order 10501:

If the nonsecret components [of such documents] are separable from the secret remainder and my be read separately without distortion of meaning, they too should be disclosed.

150 U.S.App.D.C. 233, 237, 464 F.2d 742, 746. The court instructed the District Judge to examine the classified documents "looking toward their possible separation for purposes of disclosure or nondisclosure." Ibid.

In addition, the Court of Appeals concluded that all nine contested documents fell within subsection (b)(5) of the Act, but construed that exemption as shielding only the "decisional processes" reflected in internal Government memoranda, not "factual information" unless that [93 S.Ct. 832] information is "inextricably intertwined with policymaking processes." The court then ordered the District Judge to examine the documents in camera (including, presumably, any "nonsecret components" of the six classified documents) to determine if "factual data" could be separated out and disclosed "without impinging on the policymaking decisional processes intended to be protected by this exemption." We granted certiorari, 405 U.S. 974, and now reverse the judgment of the Court of Appeals.

Page 79


The Freedom of Information Act, 5 U.S.C. § 552,5 is a revision of § 3, the public disclosure section, of the Administrative Procedure Act, 5 U.S.C. § 1002 (1964 ed.). Section 3 was generally recognized as falling far short of its disclosure goals, and came to be looked upon more as a withholding statute than a disclosure statute. See S.Rep. No. 813, 89th Cong., 1st Sess., 5 (1965) (hereinafter S.Rep. No. 813); H.R.Rep. No. 1497, 89th Cong., 2d Sess., 5-6 (1966) (hereinafter H.R.Rep. No. 1497). The section was plagued with vague phrases, such as that exempting from disclosure "any function of the United States requiring secrecy in the public interest." Moreover, even "matters of official record" were only to be made available to "persons properly and directly concerned" with the information. And the section provided no remedy for wrongful withholding of information. The provisions of the Freedom of Information Act stand in sharp relief against those of § 3. The Act eliminates the "properly and directly concerned" test of access, stating repeatedly that official information shall be made available "to the public," "for public inspection." Subsection (b) of the Act creates nine exemptions from compelled disclosures. These exemptions are explicitly made exclusive, 5 U.S.C. § 552(c), and are plainly intended to set up concrete, workable standards for...

To continue reading