574 F.2d 624 (D.C. Cir. 1978), 76-1559, American Jewish Congress v. Kreps

Docket Nº:76-1559.
Citation:574 F.2d 624
Party Name:AMERICAN JEWISH CONGRESS et al., Appellants, v. Juanita M. KREPS, Secretary of Commerce, et al.
Case Date:March 15, 1978
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 624

574 F.2d 624 (D.C. Cir. 1978)

AMERICAN JEWISH CONGRESS et al., Appellants,

v.

Juanita M. KREPS, Secretary of Commerce, et al.

No. 76-1559.

United States Court of Appeals, District of Columbia Circuit

March 15, 1978

Argued March 1, 1977.

Rehearing Denied April 27, 1978.

Page 625

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 75-1541).

Joel H. Levy, Washington, D. C., with whom Howard M. Liberman, Washington, D. C., was on the brief, for appellants.

Bruce E. Titus, Atty., Dept. of Justice, Washington, D. C., of the bar of the Supreme Court of Virginia, pro hac vice, by special leave of court, with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellees. Jeffrey Axelrad, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellees.

Girardeau A. Spann and Diane B. Cohn, Washington, D. C., filed a brief on behalf of Mark Green, et al., as amici curiae, urging reversal.

Before TAMM, ROBINSON and ROBB, Circuit Judges.

Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal summons us to investigate the scope of Exemption 3 of the Freedom of Information Act, as revised in 1976, 1 in order to determine whether Section 7(c) of the Export Administration Act of 1969 2 fits within the purview of that exemption. We conclude that Section 7(c) is not a statute calling the current version of Exemption 3 into play. We accordingly reverse the judgment under review, which denied appellants access to information on the basis of Section 7(c), and remand the case for further proceedings.

I

The Export Administration Act of 1969 endows the Secretary of Commerce with

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broad power to impose export controls in pursuit of specified objectives. 3 One of these goals congressionally declared to be "the policy of the United States" 4 is "to encourage and request domestic concerns engaged in . . . export(ing) . . . to refuse to take any action . . . which has the effect of furthering or supporting the restrictive trade practices or boycotts fostered or imposed by any foreign country against another country friendly to the United States." 5 The Act commands the Secretary to issue regulations requiring domestic exporters asked to take any such action to report the request to the Secretary, 6 and the Secretary has so prescribed. 7 Substantial penalties attend any failure to furnish the information required by the regulations. 8

Inspired by a 1975 newspaper article, appellants sought access to these boycott-request reports and allied information 9 under the auspices of the Freedom of Information Act. 10 The Secretary took the position that much of the desired material was "specifically exempted from disclosure" within the meaning of that legislation 11 by reason of Section 7(c) of the Export Administration Act, which provides:

No department, agency, or official exercising any functions under (the Export Administration Act) shall publish or disclose information obtained hereunder which is deemed confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless the head of such department or agency determines that the withholding thereof is contrary to the national interest. 12

Since the Secretary did not regard disclosure as "serv(ing) a constructive purpose or contribut(ing) to the national welfare," 13 he declined to release either the reports or any information gleanable from them that might identify particular exporters, although he did furnish appellants with statistical tabulations of the number and general format of boycott requests. 14

Appellants subsequently repaired to the District Court in an effort to establish their right of access. The court, however, was of the view that Section 7(c) was "comparable to the statute discussed (by the Supreme Court) in FAA Administrator v. Robertson, . . . 15 and that under the rationale of that Opinion, Plaintiffs herein are not entitled to the documents sought by this action. . . . " 16 It therefore granted the Secretary's motion for summary judgment, 17 from which this appeal is taken.

II

Two facets of this case have been substantially altered by occurrences postdating the District Court's disposition. First, Congress amended Exemption 3 of the Freedom of Information Act on September 13, 1976, 18

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in order "to overrule the decision of the Supreme Court in . . . Robertson . . . ," 19 on which the District Court had here relied. Beyond peradventure, as counsel for the Secretary conceded at oral argument, that amendment now governs. 20 Thus the law by which the District Court was bound is no longer controlling.

Second, the Secretary's authority under the Export Administration Act lapsed on September 30, 1976, by expiration of the fixed terms of that legislation. 21 The powers that he had exercised thereunder were then continued by an Executive Order of that date 22 until Congress revivified the Secretary's role on June 22, 1977. 23 This hiatus in the legislation poses the thorny question whether material that, when submitted, was "specifically exempted from disclosure by statute" 24 lost its exemption once the statute went into remission. We need not grapple with that issue here, however, for we find that Section 7(c) of the Export Administration Act of 1969 is not a provision that "specifically exempt(s)" the sought-after data from disclosure within the contemplation of amended Exemption 3 of the Freedom of Information Act.

III

In Robertson, the Supreme Court explained the original Exemption 3 25 as a device whereby Congress "permit(ted) the numerous laws then extant allowing confidentiality to stand." 26 Accordingly, the Court held that a statute barring divulgence of material "when in (the) judgment" of administrative officials specified consequences would follow 27 justified nondisclosure under the Freedom of Information Act notwithstanding its grant of a "broad degree

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of discretion on what information is to be protected." 28

The legislative response was a narrowing of Exemption 3 to exclude from its compass laws such as that in Robertson, which Congress perceived as giving the agency "cart blanche to withhold any information (it) pleases." 29 Congress did not, however, itself undertake to sort out those nondisclosure statutes that it comprehended as remaining within the exemption from those that it intended to exclude. Instead, it left that task for the courts by amending Exemption 3 so that material would be deemed "specifically exempted from disclosure by statute" only if the "statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 30

The legislative history of the amendment leaves no doubt that Exemption 3's two subsections are separate and distinct. 31 Subsection (A), on its face, is too rigorous to tolerate any decision making on the administrative level. It embraces only those statutes incorporating a congressional mandate of confidentiality that, however general, 32 is " absolute and without exception." 33 Subsection (B) does leave room for administrative discretion in two carefully defined situations, but its unmistakable thrust, like that of Subsection (A), is to assure that basic policy decisions on governmental secrecy be made by the Legislative rather than the Executive branch. 34 To include within its sweep provisions reflecting no more than a vague apprehension that an agency might someday fall heir to sensitive information is obviously to frustrate that policy. Nondisclosure is countenanced by Subsection (B) if, but only if, the enactment is the product of congressional appreciation of the dangers inherent in airing particular data and incorporates a formula whereby the administrator may determine precisely whether disclosure in any

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instance would pose the hazard that Congress foresaw.

Decisions as to whether given "criteria" or enumerated "types of matters" are sufficiently "particular(ized)" 35 in any statute to represent such a congressional judgment necessarily implicate a measure of subjectivity. Congress did, however, leave some clues to the measure it contemplated, for it gave examples of provisions that it concluded would or would not fall within the amended exemption. 36 These touchstones leave no doubt but that statutes like that involved in Robertson which, because they set forth benchmarks for secrecy so general as the "interest of the public," 37 in fact delegate to administrators the entire burden of identifying the problems disclosure might generate do not satisfy Subsection (B)'s requirement that Congress have articulated "particular criteria." 38 When, on the other hand, Congress has made plain its concern with a specific effect of publicity as when in the Atomic Energy Act of 1954 it directed that information be released only if it "can be published without undue risk to the common defense and security" 39 Exemption 3 is to honor that concern. 40 Similarly, to fall within the definition of a "statute . . . (that) refers to particular types of matters to be withheld," 41 the "Congressional English" 42 must be more exact than that in a section of the Social Security Act which purports to forbid disclosure "of any (tax) return . . . , or of any file, record, report or other paper, or any information . . . , except as (the agency) . . . may by regulations prescribe." 43 These and other...

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