Essential Information, Inc. v. U.S. Information Agency

• Decision Date: 15 June 1998
• Docket Number: No. 97-5017,97-5017
• Parties: ESSENTIAL INFORMATION, INC., et al., Appellants, v. UNITED STATES INFORMATION AGENCY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1165

134 F.3d 1165

328 U.S.App.D.C. 341

ESSENTIAL INFORMATION, INC., et al., Appellants, v. UNITED STATES INFORMATION AGENCY, Appellee.

No. 97-5017.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 9, 1997.

Decided Feb. 10, 1998.

Rehearing Denied June 15, 1998. ^*

Colette G. Matzzie, Washington, DC, argued the cause for the appellants. David C. Vladeck, Washington, DC, was on brief.

Douglas N. Letter, Attorney, United States Department of Justice, Washington, DC, argued the cause for the appellee. Frank W. Hunger, Assistant Attorney General, and Mary Lou Leary, Acting United States Attorney, Washington, DC, were on brief.

Before: HENDERSON, RANDOLPH and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Concurring opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Dissenting opinion filed by Circuit Judge TATEL.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The appellants, who identify themselves as "researchers, scholars, organizers and journalists," Appellant's Brief at 6, ¹ seek disclosure under the Freedom of Information Act, 5 U.S.C. §§ 552 et seq., (FOIA) of internet addresses and programming materials generated by the United States Information Agency (USIA). ² The district court granted summary judgment in favor of USIA on the ground that USIA's records "are exempted from disclosure by statute," 5 U.S.C. § 552(b)(3)(B), namely by the Smith-Mundt Act (Act), which prohibits USIA from "disseminat[ing]" "information" or "distribut[ing]" "program material" within the United States, 22 U.S.C. §§ 1461, 1461-1a. See Essential Info., Inc. v. USIA, C.A. No. 96-1194 (D.D.C. Nov. 27, 1996) (Mem. Op.). We affirm the district court's judgment on this ground. ³

The FOIA requires generally that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3). FOIA Exemption 3 shields from the general disclosure requirement "matters that--... are exempted from disclosure by statute (other than section 552b of this title), provided that such 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." 5 U.S.C. § 552(b)(3)(B). A "central aim" of the FOIA is "to substitute legislative judgment for administrative discretion." American Jewish Congress v. Kreps, 574 F.2d 624, 628 n. 30 (D.C.Cir.1978) (citing S. Rep. 89-813, at 3-6 (1965)). The aim is apparent in subsection (A) of Exemption 3 which, "on its face, is too rigorous to tolerate any decision making on the administrative level." Id. at 628. When "Congress has made plain its concern with a specific effect of publicity ..., Exemption 3 is to honor that concern." Id. at 629. The Congress has expressed its concern plainly in the Smith-Mundt Act and we must therefore apply Exemption 3. ⁴

Section 1461 of the Act directs that "information about the United States, its people, and its policies" that USIA prepares or disseminates abroad "shall not be disseminated within the United States, its territories, or possessions" until twelve years after its preparation or dissemination when the Archivist of the United States (Archivist) is to oversee its "domestic distribution." 22 U.S.C. § 1461(a), (b). ⁵ Similarly, section 1461-1a provides that "no program material prepared by [USIA] shall be distributed within the United States" "[e]xcept as provided in section 1461," id. § 1461-1a. ⁶ Each provision contains a flat ban on "dissemination" or "distribution" for a twelve-year period. ⁷ See S.Rep. No. 92-754, at 82-85 (1972) (declaring that section 1461 "is a blanket prohibition barring public distribution of any and all materials produced by the United States Information Agency"). The Act even prescribes who may merely examine the materials. Thus, on its face the Act appears to be "the sort of nondisclosure statute contemplated by FOIA exemption 3" because it is "a statute specifically exempting certain matters from disclosure to the general public and leaving [USIA] with no discretion to reveal those matters publicly." Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 611 (D.C.Cir.1997).

The statute's plain language is reinforced by the Congress's repeated amendment of the Act to clarify and strengthen the ban on domestic distribution of USIA materials. See Pub.L. No. 92-352, § 204, 86 Stat. 489, 494 (1972) (inserting express prohibition in section 1461 to remedy "obvious need for a specific prohibition against the domestic dissemination of any USIA materials," S.Rep. No. 92-754, at 85); Pub.L. No. 99-93, § 208, 99 Stat. 405, 431 (1985) (enacting section 1461-1a); Pub.L. No. 101-246, § 202, 104 Stat. 15, 49 (1990) (adding section 1461(b) which directs USIA to deliver materials to Archivist "for domestic distribution" after 12 years, changing "[c]urrent law" which "prohibit[ed] the domestic release of almost all USIA materials," S. Rep. 101-46, 31 (1989)); Pub.L. No. 103-236, § 232, 108 Stat. 382, 424 (1994) (amending section 1461-1a to make clear that ban does not prohibit responding to public inquiries). Particularly enlightening are the circumstances surrounding the 1972 amendment which first made the domestic distribution ban explicit. A member of the United States Senate had requested and obtained a USIA film which he intended to broadcast to his constituents. See S.Rep. No. 92-754, at 82-85. In direct response to the proposed broadcast, the Congress amended the Act to prohibit dissemination and distribution generally and to restrict its own members' access to USIA materials to "examination only." See H.R.Rep. No. 1145, at 16 (1972) ("provision was amended ... to clarify ... that U.S.I.A. materials are to be made available to Members of Congress for examination only and not for dissemination"). If the general citizenry were permitted to obtain the forbidden materials through the FOIA, as the appellants urge, the purpose of the 1972 amendment would be thwarted.

The appellants argue that the Act is not a qualifying "nondisclosure" statute because the prohibited acts, "dissemination" and "distribution," are different from "disclosure." The former two, they argue, necessarily entail a broad unsolicited dispersal rather than release of materials in response to specific, individual requests. ⁸ We disagree. While the terms may be so distinguishable under some circumstances, the Act itself demonstrates that the Congress intended no such distinction here. Section 1461's prohibition against domestic dissemination of USIA information is expressly made "[s]ubject to subsection (b)" of section 1461 which directs USIA, under the heading "Dissemination of information within United States," to "make available" program material, twelve years after its initial dissemination or preparation, to the Archivist "for domestic distribution " to "persons seeking its release in the United States." 22 U.S.C. § 1461(b) (emphasis added). ⁹ The domestic "distribution" and "dissemination" contemplated in this provision plainly encompass disclosure to individual requesters. It seems unlikely that the two terms were meant to bear different meanings in the immediately preceding prohibition. Perhaps more importantly, the Congress had no need to make an exception for such disclosure after 12 years unless the general dissemination and distribution bans otherwise prohibited it. In sum, the Act is an emphatic non disclosure statute forbidding all domestic distribution and dissemination except insofar as the Act itself makes exceptions and it is only via the exceptions that the Act can be said to "specifically require[ ] disclosure." See Dissent at 1170.

The appellants also contend that the Act is not a nondisclosure act because it does not prohibit all disclosure of records but only disclosure to persons in this country. This argument must fail as well. The court has previously found that a limitation on the persons to whom disclosure is prohibited does not remove a nondisclosure statute from Exemption 3's ambit. See Church of Scientology of Calif. v. Internal Revenue Serv., 792 F.2d 146, 148-50 (D.C.Cir.1986) (holding Exemption 3 embraces statute prohibiting disclosure of taxpayer records excepting, inter alia, "disclosure to specified private individuals (e.g., taxpayer to whom information relates) or government officials, rather than to the public at large"). So too here.

Finally, the appellants argue that the Congress could not have intended "so irrational a system" that would allow some United States residents, such as those close to a national border or with friends abroad, to obtain USIA records while denying other residents access to them. We find nothing irrational in the system the Congress has established. USIA has been directed "to provide for the preparation, and dissemination abroad, of information about the United States, its people and its policies." 22 U.S.C. § 1461(a). When USIA carries out this mandate, in some cases individuals within the United States will be able to obtain access to the information disseminated, as Congress has elsewhere explicitly recognized. See 22 U.S.C. § 1465bb (directing that USIA "shall provide for the open communication of information and ideas through the use of television broadcasting to Cuba" "notwithstanding the limitation of section 1461 of this title with respect to the dissemination in the United States of information prepared for dissemination abroad to the extent such dissemination is inadvertent"). The Act's prohibition of domestic dissemination by USIA is a reasonable means of minimizing such access.

For the preceding reasons we hold that the material sought by the...