Soucie v. David

• Citation: 448 F.2d 1067
• Decision Date: 13 April 1971
• Docket Number: No. 24573.,24573.
• Parties: Gary A. SOUCIE et al., Appellants v. Edward E. DAVID, Jr., Director, Office of Science and Technology, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

448 F.2d 1067 (1971)

Gary A. SOUCIE et al., Appellants v. Edward E. DAVID, Jr., Director, Office of Science and Technology, et al.

No. 24573.

United States Court of Appeals, District of Columbia Circuit.

Argued December 7, 1970.

Decided April 13, 1971.

COPYRIGHT MATERIAL OMITTED

Mr. Peter L. Koff, Boston, Mass., with whom Messrs. Lawrence Speiser and Melvin L. Wulf, Washington, D. C., were on the brief, for appellants. Mrs. Hope Eastman, Washington, D. C., also entered an appearance for appellants.

Mr. Jeffrey F. Axelrad, Atty., Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., Robert V. Zener and Harland F. Leathers, Attys., Department of Justice, were on the brief, for appellees. Mr. Morton Hollander, Atty., Department of Justice, also entered an appearance for appellees.

Mr. Peter L. Koff, Asst. Corporation Counsel for the City of Boston, Massachusetts, filed a brief on behalf of the City of Boston as amicus curiae.

Before BAZELON, Chief Judge, VAN DUSEN,^* Circuit Judge, U. S. Court of Appeals for the Third Circuit, and WILKEY, Circuit Judge.

BAZELON, Chief Judge:

This is an appeal from the dismissal of a suit for injunctive relief under the Freedom of Information Act.¹ Two citizens seek to compel the Director of the Office of Science and Technology (OST)² to release to them a document, known as the Garwin Report, which evaluates the Federal Government's program for development of a supersonic transport aircraft (SST).³

The Report originated in the following manner. The President asked the Director of the OST, then Dr. Lee A. DuBridge,⁴ to provide him with an "independent assessment" of the SST program. Dr. DuBridge convened a panel of experts, headed by Dr. Richard L. Garwin, to assist him. When the President learned of the panel, he asked to see its report. Dr. DuBridge subsequently transmitted the Garwin Report, along with his own evaluation, to the President.⁵

When appellants inquired about the Garwin Report, the OST indicated that it would not release the Report to members of the public because the Report was a Presidential document over which the OST had no control, and was "in the nature of inter- and intra-agency memoranda which contained opinions, conclusions and recommendations prepared for the advice of the President."⁶ Appellants brought suit under the Freedom of Information Act to compel disclosure of the Report.⁷ The District Court dismissed the complaint with a brief order stating that the Report is a Presidential document, and consequently, that the court has neither authority to compel its release nor jurisdiction over a suit to obtain that relief. At the hearing, the trial judge discussed the basis for his ruling. He stated that the OST is not an "agency" for the purposes of the Freedom of Information Act, but rather a part of the Office of the President, and that the Garwin Report is protected from compulsory disclosure by the doctrine of executive privilege.

In Part I of this opinion we review the origin and functions of the OST and conclude that the OST is an agency, and that the Garwin Report is an agency record. Consequently, subject to any constitutional issues which may be raised, the complaint states a cause of action under the Freedom of Information Act, and the District Court erred in dismissing the suit. The case must be remanded for that court to consider whether the document is protected, in whole or in part, by any of the specific exemptions enumerated in the Act. In Part II of this opinion we indicate some of the considerations that will be relevant to that determination.

While the District Court referred to the doctrine of executive privilege in support of its decision, the privilege was not expressly invoked by the Government, and therefore, it was not properly before the court.⁸ Serious constitutional questions would be presented by a claim of executive privilege as a defense to a suit under the Freedom of Information Act,⁹ and the court should avoid the unnecessary decision of those questions.¹⁰ Accordingly, whether or not the Government makes a claim of privilege on remand, the court should first consider whether the Report falls within any statutory exemption.¹¹ Only if the Act seems to require disclosure, and if the Government makes an express claim of executive privilege, will it be necessary for the court to consider whether the disclosure provisions of the Act exceed the constitutional power of Congress to control the actions of the executive branch.¹²

I

Congress passed the Freedom of Information Act in 1966 to strengthen the disclosure requirements of the Administrative Procedure Act (APA). Each federal agency subject to the APA must now make its records, with certain specific exceptions, available to "any person" who requests them; district courts have jurisdiction to order the production of any "identifiable record" which is "improperly withheld," and "the burden is on the agency to sustain its action."

Under the APA, an agency is any "authority of the Government of the United States, whether or not it is within or subject to review by another agency."¹³ The statutory definition of "agency" is not entirely clear, but the APA apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions.¹⁴ While the primary purpose of the APA is to regulate the processes of rule making and adjudication, administrative entities that perform neither function are nevertheless agencies, and therefore subject to the public information provisions of the APA, i. e., the Freedom of Information Act.¹⁵

The District Court ruled that the OST is not an agency, but merely staff to the President.¹⁶ On that theory, the only "authority" controlling the Garwin Report is the President, and the trial court held that the President is not subject to the disclosure provisions of the APA. We need not determine whether Congress intended the APA to apply to the President,¹⁷ and whether the Constitution would permit Congress to require disclosure of his records,¹⁸ for we have concluded that the OST is a separate agency, subject to the requirements of the Freedom of Information Act, and that the Garwin Report is a record of that agency.

The OST, created in 1962 by an executive reorganization plan, is authorized (1) to evaluate the scientific research programs of the various federal agencies, and (2) to advise and assist the President in achieving coordinated federal policies in science and technology.¹⁹ Its functions had previously been assigned to the National Science Foundation,²⁰ but the President found that arrangement unsatisfactory:²¹

The Foundation, being at the same organizational level as other agencies, cannot satisfactorily coordinate Federal science policies or evaluate programs of other agencies. Science policies, transcending agency lines, need to be coordinated and shaped at the level of the Executive Office of the President drawing upon many resources both within and outside of government. Similarly, staff efforts at that higher level are required for the evaluation of Government programs in science and technology.

The President therefore proposed a reorganization plan that transferred certain functions to an administrative unit "outside the White House Office, but in the Executive Office of the President on roughly the same basis as the Budget Bureau, the Council of Economic Advisors, the National Security Council, and the Office of Emergency Planning."²²

A reorganization plan proposed by the President can take effect only if both houses of Congress acquiesce, i. e., if neither house passes a resolution disapproving the plan within a fixed period of time.²³ The congressional understanding of a proposed plan is therefore entitled to considerable weight in determining its effect. The one house of Congress that explicitly considered the plan creating the OST²⁴ clearly contemplated that the OST would function as a distinct entity and not merely as part of the President's staff. The House Committee on Government Operations stated:²⁵

Heretofore, the Congress has not been able to obtain adequate information on Government-wide science matters because the President\'s Special Assistant for Science has been unavailable for questioning by congressional committees due to his confidential relationship with the President. We express no opinion here on the merits of this reasoning but this committee\'s position on excessive invocation of executive privilege is well known. With the creation of the new office the Director will become available to Congress and provide us with more information than we now obtain.

A Congressman commenting on the plan emphasized the same point:²⁶

With an Office established by the reorganization plan, and a Director and Deputy Director to head it, congressional committees will be able to deal with this organization on the same basis as they do with the Bureau of the Budget and the Council of Economic Advisers. We will have a responsible officer to whom we can direct inquiries, and whom we can summon to committees to give testimony on subjects of the greatest national importance.

If the OST's sole function were to advise and assist the President, that might be taken as an indication that the OST is part of the President's staff and not a separate agency. In addition to that function, however, the OST inherited from the National Science Foundation the function of evaluating federal programs. When Congress initially imposed that duty on the Foundation, it was delegating some of its own broad power of inquiry²⁷ in order to improve the information on federal scientific programs available to the legislature. When the responsibility for program evaluation was transferred to the OST, both the executive branch and members of Congress contemplated that Congress would retain control over information on federal programs accumulated by the OST, despite any...