Committee for Nuclear Responsibility, Inc. v. Seaborg

• Decision Date: 28 October 1971
• Docket Number: No. 71-1854.,71-1854.
• Citation: 463 F.2d 788
• Parties: The COMMITTEE FOR NUCLEAR RESPONSIBILITY, INC., et al. v. Glenn T. SEABORG et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

463 F.2d 788 (1971)

The COMMITTEE FOR NUCLEAR RESPONSIBILITY, INC., et al. v. Glenn T. SEABORG et al., Appellants.

No. 71-1854.

United States Court of Appeals, District of Columbia Circuit.

Argued October 27, 1971.

Decided October 28, 1971.

As Amended November 3, 1971.

COPYRIGHT MATERIAL OMITTED

Mr. Edmund B. Clark, Atty., Department of Justice, with whom Asst. Atty. Gen. Shiro Kashiwa and Messrs. Thomas L. McKevitt and Peter R. Steenland, Attys., Department of Justice, were on the pleadings, for appellants.

Mr. David Sive, New York City, a member of the bar of the Supreme Court of New York, pro hac vice, by special leave of court, with whom Mr. Harold Green, New York City, was on the pleadings, for appellees.

Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.

Argued in Misc. No. 3714 October 27, 1971.

PER CURIAM:

This appeal presents a new chapter in the litigation concerning the proposed underground nuclear test, code-named Cannikin, on Amchitka Island, Alaska. In Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D. C. ___, 463 F.2d 783, No. 71-1732, 1971, we held that plaintiffs—conservation groups—had presented a cognizable claim, which the courts were obligated to determine, that the Atomic Energy Commission had failed to carry out the mandate of Congress in the National Environmental Policy Act (NEPA), 42 U.S. C. § 4331 et seq. (1970), to set forth all pertinent environmental effects of the project, and thus to provide the disclosure which is indispensable to informed appraisal of the project by the Executive, Congress, and, the public. We remanded the case to the District Court so that plaintiffs might present evidence in support of their allegations, and continue the pretrial discovery that had been untimely curtailed by the government's motion to dismiss the lawsuit.

On remand plaintiffs sought to have the government produce documents in its possession allegedly containing information needed by plaintiffs for substantiation of their claim. The government resisted and raised a claim of executive privilege. To resolve the question of privilege, the District Court ordered the government to submit the documents at issue for personal in camera inspection by the District Court after exercising any and all materials reflecting military and diplomatic secrets as distinguished from possible environmental hazards of the test. The order included a certification under 28 U.S.C. § 1292(b) of the controlling importance of the questions presented.¹ The government filed an application for allowance of an immediate appeal, challenging the District Court's order on the grounds that executive privilege precludes even in camera screening by the District Court. We grant the appeal and affirm the order of the District Court. Respondents in this proceeding, plaintiffs below, request a stay of the blast pendente lite. For the reasons set forth below, we deny the stay.

I.

Disposition of the matters before us has been expedited in view of the announcement, made to the Court at oral argument yesterday afternoon, that less than two hours earlier the Atomic Energy Commission had issued a press release stating as follows:

STATEMENT BY AEC CHAIRMAN JAMES R. SCHLESINGER

The Atomic Energy Commission is now planning to proceed with the Cannikin test. We have now received the requisite authority to go ahead including detonation. Stemming operations at the test site, which make it impractical to recover the device, will begin today. We expect to be in a readiness state to detonate within a week.

The primary purposes of Cannikin are to proof test the Spartan warhead and to obtain measurements on yield and on x-ray flux and spectrum. Testing is regarded as a desirable and prudent step before large investment of funds is made on that component of the Safeguard system. From the national security standpoint no serious objection has been raised against conducting the test. On that score the case is straightforward.

Some objections have been raised on environmental grounds. In the careful examination of these issues within the Executive Branch environmental damage has been exhaustively considered and overriding requirements of national security have, of necessity, taken precedence.

The government suggests that the developments recounted in the statement may render the case moot. That suggestion is not sound. As our opinion of October 5 made clear, the recent action of Congress² requiring the President personally to approve the test before it can go forward does not negate the AEC's obligation to comply with NEPA. Approval by the President and compliance with NEPA are two separate statutory requirements which must be satisfied if the test is to be lawfully carried out. The President's decision satisfies one requirement. This Court, as to the second requirement of law, is left with the responsibility to determine whether the AEC disregarded the will of Congress in preparing the environmental impact statement required by NEPA.

II.

Documents such as those encompassed in the District Court's order would normally remain part of the internal files of the agencies involved in the absence of an appropriate demand. When such demand is made in conjunction with discovery sought in the courts, the settled rule is that the court must balance the moving party's need for the documents in the litigation against the reasons which are asserted in defending their confidentiality.³

The government's interest in confidentiality is plain where the documents make reference to military or diplomatic secrets. But plaintiffs indicated clearly that they seek no such secrets, and the District Court's order explicitly provides that the government is not required to produce any documents or parts of documents which contain such secret material.

The government may still have an interest, however, in avoiding disclosure of documents which reflect intra-executive advisory opinions and recommendations whose confidentiality contributes substantially to the effectiveness of government decision-making processes.⁴ In camera inspection of allegedly privileged documents—as ordered here by the District Court—is a procedure approved by the courts at least where, as here, military and diplomatic secrets are not at issue.⁵ Of course, the party seeking discovery must make a preliminary showing of necessity to warrant even in camera disclosure,⁶ but there is no claim on this appeal that plaintiffs have not made such a showing or that the District Court's order is erroneous for lack of such a showing.

The purpose of in camera inspection by the District Court is to permit the District Judge to examine the documents and determine which documents, or which portions of documents, may properly be disclosed to the other party, and which should continue to be held in a confidential status. This determination may come to require e. g., separation of those documents or portions of documents that set forth facts from those that present comments that must be held confidential in order to maintain the integrity of the executive decision-making process.

However, the government seeks to distinguish all those cases⁷ where it was required to produce documents for in camera inspection on the ground that in those cases the government gave reasons to the court for withholding disclosure. In this case, says the government, it is invoking "true" executive privilege—and is not offering any reasons to the court. The claim of privilege consists of the filing of affidavits from the five officials heading the agencies where the documents are located. Each of those officials avers that he has determined that the documents in his official custody may not be produced for the personal in camera inspection of the judge, on the ground that such disclosure even to the judge would be contrary to the public interest. The government's position— sharpened at oral argument yesterday— is that this determination by the executive official is conclusive upon the court, and the court has no judicial authority to require the production of the documents in the possession of an executive department, once the head of that department has filed this formal claim of privilege. Government counsel further asserts that this executive determination is conclusive even where the document only relates to certain factual material that is essential for disposition of the lawsuit, and even where the document is such that the court may readily separate factual material to be disclosed to the other party from the kind of recommendations and discussion that would be an integral part of the decision-making process.

In our view, this claim of absolute immunity for documents in possession of an executive department or agency, upon the bald assertion of its head, is not sound law.

There are some cases that hold that the court may not require production from a subordinate official when his departmental regulation requires that the decision on production should be first presented to the head of the department. Boske v. Comingore, 177 U.S. 459, 20 S. Ct. 701, 44 L.Ed. 846 (1900); United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). But as Justice Reed pointed out in the latter case, these decisions went to the point of "centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged," 340 U.S. at 468, 71 S.Ct. at 419. When it is the head of the executive department who presents a challenge to an order requiring the production of documents, the claim of privilege is one for consideration by the court, which could give attention to the reasons presented by the head of the agency for failing to produce the information.

These early cases were based on a "housekeeping" provision, now codified as 5 U.S.C. § 301 (1970), which authorized each department to issue regulations with respect to custody of its papers. This statute does...