Aviation Consumer Action Project v. Washburn
| Decision Date | 21 May 1976 |
| Docket Number | No. 75-1086,75-1086 |
| Citation | 535 F.2d 101,175 U.S.App.D.C. 273 |
| Parties | AVIATION CONSUMER ACTION PROJECT et al. v. C. Langhorne WASHBURN et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Judith S. Feigin, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Irving Jaffe, Acting Asst. Atty. Gen., Earl J. Silbert, U. S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief for appellants.
Morton Hollander, Atty., Dept. of Justice, and Peter R. Reilly, Asst. U. S. Atty., Washington, D. C., also entered appearances for appellants.
Reuben B. Robertson, III, Washington, D. C., with whom Alan B. Morrison, Washington, D. C., was on the brief for appellees.
Before MacKINNON and ROBB, Circuit Judges and BRODERICK, * United States District Judge for the Eastern District of Pennsylvania.
This is an appeal from an order of the district court dated September 6, 1974 granting summary judgment to the plaintiffs (appellees), which order declared that exemption five of the Freedom of Information Act, 5 U.S.C. § 552(b)(5), "is inapplicable and cannot be invoked by the defendants (appellants) or their agents or employees as a basis for closing any meeting of the Travel Advisory Board (hereinafter TAB) or any other advisory committee from the public, or for excluding the plaintiffs or any other interested person from any such meeting." The district court's order also declared that exemption five of the Freedom of Information Act, "pertaining to inter-agency and intra-agency memorandums and letters, is inapplicable and cannot be invoked by defendants (appellants) or their agents or employees as to documents which have been voluntarily disclosed by the agency to members of an advisory committee who are not full-time officers or employees of the Federal government." The appellants contend that the district court erred in holding that exemption five of the Freedom of Information Act cannot be asserted as a basis for closing an advisory committee meeting under section 10(d) of the Advisory Committee Act, 5 U.S.C. App. I. The appellants further contend that even if the district court did not err in holding exemption five inapplicable to TAB meetings, the order is over-broad in that it applies to meetings of advisory committees in the Department of Commerce other than the TAB.
The appellee, Aviation Consumer Action Project, is a non-profit corporation organized under the laws of the District of Columbia, and is engaged in the advocacy of consumer rights and public interest in the airline and tourism industries. Appellee, Donald P. Knoles, is a reporter assigned to cover news developments affecting the airline and tourism industries, while appellee, Brant S. Goldwyn, is a consumer of air transportation and tourism services.
The appellant, United States Department of Commerce, is a department of the United States government with the responsibility to promote travel in the United States. Appellant, C. Langhorne Washburn, is the Assistant Secretary of Commerce for Tourism. Mr. Washburn, in his official capacity as the Assistant Secretary of Commerce, is the head of the United States Travel Service (USTS). By delegation from the Secretary of Commerce, Mr. Washburn, as the Assistant Secretary for Tourism, is also responsible for the administration of the International Travel Act of 1961, as amended, 22 U.S.C. § 2121 et seq. The purpose of the International Travel Act is to strengthen the domestic and foreign commerce of the United States and promote friendly understanding and appreciation of the United States by encouraging foreign residents to visit the United States.
The Assistant Secretary for Tourism, Mr. Washburn, is also the Chairman of the TAB. 1 TAB was established by the Secretary of Commerce on July 18, 1968 in accordance with the provisions of the Federal Advisory Committee Act, 5 U.S.C. App. I. 2 The charter of the TAB provides that the purpose of the committee is to: (1) Advise the Secretary of Commerce on policies and programs designed to accomplish the purpose of the International Travel Act of 1961, as amended; and (2) To identify areas where the attainment of goals of the USTS can be facilitated, and to develop policy recommendations related thereto, and promote the goals of both the travel industry and the agencies connected therewith. The TAB is to function solely as an advisory body. 3 The TAB consists of fifteen members, in addition to the chairman. Its members are appointed by the Secretary of Commerce and serve for a period of two years. The members of the TAB are senior representatives from private and public organizations involved in the travel and tourism industries.
The factual background leading to this lawsuit can be summarized as follows. Chairman Washburn determined that the TAB should conduct a meeting on September 25, 1973 and that one item that should be placed on the agenda for discussion at that meeting was a memorandum dated August 31, 1973, prepared by Michael Miller, Deputy Assistant Secretary for Tourism, which memorandum was sent to Mr. Washburn. This memorandum summarized various proposals and recommendations developed within the USTS relating to future planning of USTS programs, policies and objectives. Chairman Washburn determined that the memorandum was an intra-agency memorandum within the meaning of exemption five of the Freedom of Information Act and that therefore the portion of the TAB meeting concerning the memorandum should be closed to the public. Therefore, pursuant to section 10(d) of the Advisory Committee Act, Mr. Washburn sought a determination by the Assistant Secretary of Commerce for Administration that the meeting concerned matters listed in Section 552(b) of Title 5. 4 On September 6, 1973, the Assistant Secretary for Administration issued a written finding that "public interest requires that such matters be withheld from disclosure" and determined that the portion of the scheduled September 25, 1973 meeting during which intra-agency communications would be reviewed and discussed by the TAB members should be closed to the public pursuant to exemption five of the Freedom of Information Act and in accordance with Section 10(d) of the Federal Advisory Committee Act. 5 On September 19, 1973, a notice of the September 25 TAB meeting was published in the Federal Register, 38 F.R. 26222. The notice stated that following a general open session to review and discuss USTS programs and activities there would be a closed executive session to discuss internal memoranda relating to proposed revisions of future programs, objectives and plans. The notice further stated that the Assistant Secretary of Commerce for Administration had determined that these matters fell within section 552(b)(5) of Title 5 and, accordingly, discussion of these memoranda should be closed pursuant to section 10(d) of the Federal Advisory Committee Act. (App. 38).
By letter of September 20, 1973, counsel for appellees requested copies of all memoranda to be discussed at the September 25, 1973 meeting and requested that the determination to close a portion of the meeting be withdrawn. (App. 40). These requests were denied by a hand-delivered letter on September 21. The September 25th meeting was held as scheduled, with the executive session being closed to the public. (App. 41-42). On January 25, 1974, Mr. Washburn mailed to appellees' counsel two copies of the August 31, 1973 memorandum which had been discussed at the executive session of the September 25th meeting.
This suit seeking declaratory and injunctive relief was filed in the district court on September 27, 1973. On September 10, 1974, the district court granted summary judgment for the plaintiffs by an order which declared that exemption five of the Freedom of Information Act "is inapplicable and cannot be invoked by the defendants or their agents or employees as a basis for closing any meeting of the Travel Advisory Board or any other advisory committee from the public, or for excluding the plaintiffs or any other interested person from any such meeting." The district court's order also declared that exemption five of the Freedom of Information Act "pertaining to inter-agency and intra-agency memorandums and letters is inapplicable and cannot be invoked by defendants or their agents or employees as to documents which have been voluntarily disclosed by the agency to members of an advisory committee who are not full-time officers or employees of the Federal government."
Section 10 of the Federal Advisory Committee Act, 5 U.S.C. App. I, provides in pertinent part:
(a)(1) Each advisory committee meeting shall be open to the public.
(2) Except when the President determines otherwise for reasons of national security, timely notice of each such meeting shall be published in the Federal Register . . . .
(3) Interested persons shall be permitted to attend, appear before, or file statements with any advisory committee, subject to such reasonable rules or regulations as the Director may prescribe.
(d) Subsections (a)(1) and (a)(3) of this section shall not apply to any advisory committee meeting which the President, or the head of the agency to which the the advisory committee reports, determines is concerned with matters listed in section 552(b) of Title 5. Any such determination shall be in writing and shall contain the reasons for such determination. If such a determination is made, the advisory committee shall issue a report at least annually setting forth a summary of its activities and such related matters as would be informative to the public consistent with the policy of section 552(b) of Title 5.
Subdivision (d) quoted above provides that the open meeting requirement for advisory committee meetings shall not apply to any advisory...
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