Wellford v. Hardin, 14904.

• Decision Date: 25 May 1971
• Docket Number: No. 14904.,14904.
• Citation: 444 F.2d 21
• Parties: Harrison WELLFORD, Appellee, v. Clifford L. HARDIN, individually, and as Secretary of Agriculture, et al., Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

444 F.2d 21 (1971)

Harrison WELLFORD, Appellee, v. Clifford L. HARDIN, individually, and as Secretary of Agriculture, et al., Appellants.

No. 14904.

United States Court of Appeals, Fourth Circuit.

Argued February 11, 1971.

Decided May 25, 1971.

Robert V. Zener, Atty., Dept. of Justice, Washington, D. C. (William D. Ruckelshaus, U. S. Asst. Atty. Gen., and George Beall, U. S. Atty., on brief) for appellants.

James J. Hanks, Jr., Baltimore, Md., for appellee.

Before SOBELOFF, BRYAN, and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

The Secretary of Agriculture appeals from an order of the district court enjoining the Consumer and Marketing Service of the Department of Agriculture from withholding from the public (1) letters of warning sent to meat and poultry processors; and (2) information with respect to the administrative detention of meat and poultry products.¹ The appeal requires us to construe the investigatory files exemption of the Freedom of Information Act 5 U.S.C. § 552(b) (7) and to determine whether the due process clause dictates continued secrecy of the letters and detentions. Finding no statutory exemption or constitutional bar to the production of the requested records, we affirm.

The Poultry Products Inspection Act provides that the Secretary of Agriculture need not prosecute violators "whenever he believes that the public interest will be adequately served and compliance with the Act obtained by a suitable written notice or warning." 21 U.S.C. § 462 (1964). The Federal Meat Inspection Act contains a similar provision, except that the Secretary's option to issue a warning letter is limited to "minor violations." 21 U.S.C. § 676(b) (Supp. III, 1967). The Federal Meat Inspection Act and the Poultry Products Inspection Act also authorize the Secretary or his representative to detain for a period of up to 20 days any meat or poultry product which he has reason to believe is adulterated or misbranded, pending in rem condemnation proceedings or other action. 21 U.S.C. § 467a (Supp. IV, 1968); 21 U.S.C. § 672 (Supp. III, 1967).

Harrison Wellford, Executive Director of the Center for Study of Responsive Law, requested disclosure under the Freedom of Information Act, 5 U.S.C. § 552, of copies of all letters of warning issued since January 1, 1965, to any non-federally-inspected meat or poultry processor suspected of being engaged in interstate commerce. He also requested the name of each processor whose product had been detained since January 1, 1965, and information about the detention including the ultimate disposition of the products. The Administrator of the Consumer and Marketing Service denied the requests on the grounds that the records were investigatory files exempt from the mandatory disclosure provisions of the Act.

The Freedom of Information Act, 5 U.S.C. § 552, provides in pertinent part:

"(a) * * *

"(3) * * * each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo and the burden is on the agency to sustain its action * * *.

"(b) This section does not apply to matters that are —

* * * * * *

"(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency * * *."²

We agree with the district court that the legislative history of this exemption reveals that its purpose was to prevent premature discovery by a defendant in an enforcement proceeding. The reports of the House Government Operations Committee and the Senate Judiciary Committee define the purpose of the exemption as the protection of the government's case in court.³ Here the material sought under the Information Act was already in the hands of the parties against whom the law was being enforced. Unlike the request for a witness' statement in Barceloneta Shoe Corp. v. Compton, 271 F.Supp. 591 (D.P. R.1967), the request for records does not come from a party facing an enforcement proceeding to which the investigative material is germane. Warning letters and reports of detention are the written records of regulatory action already taken. They are not information gathering steps which must be shielded in order to protect the government from premature discovery in adjudicative proceedings.

The Department argues that the investigatory files exemption has other purposes which prohibit access to these records. Investigative agencies must be protected, it says, from disclosure of the identity of informants and investigative techniques. The plaintiffs, however, requested no more than the results of the enforcement actions and, at any rate, no more than was already in the hands of the companies who were warned or whose products were detained. Because the contents of these records are known by these companies, publication would not reveal secret investigative techniques.

The Department also contends that disclosure of enforcement records may discourage voluntary compliance with the Meat and Poultry Inspection Acts. Whatever the merits of the Department's argument,⁴ it provides no excuse for withholding the records. The Freedom of Information Act was not designed to increase administrative efficiency, but to guarantee the public's right to know how the government is discharging its duty to protect the public interest.

The Department takes the position that the seventh exemption was intended to protect not only the investigator, but also the investigated. Public disclosure of information in investigatory files, it argues, may constitute an unwarranted invasion of the privacy of companies that have been investigated, and defamatory information contained in these files may damage their reputations. In support, the Department cites testimony before legislative committees that administrative files often contain "half-baked complaints," mere rumor, and unsubstantiated charges of wrongdoing. Again, the plaintiffs did not request complaints, half-baked or otherwise, but only the records of official enforcement actions.

Of course, a company subject to a warning letter or detention action suffers a loss of privacy. The question, however, is whether the loss of privacy involved in disclosing the requested records is, as the Department contends, unwarranted. Congress has already answered the question by passing the Freedom of Information Act and the "overriding emphasis of its legislative history is that information maintained by the executive branch should become more available to the public." Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, p. 1 (1967). After considering voluminous testimony on both sides and balancing the public, private, and administrative interests, Congress decided that the best course was open access to the governmental process with a very few exceptions. It is not the province of the courts to restrict that legislative judgment under the guise of judicially balancing the same interests that Congress has considered.

A broad construction of the exemptions would be contrary to the express language of the Act. See Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, 938 (1970). Section 552(c) provides that the Act "does not authorize withholding of information or limit the availability of records to the public, except as specifically stated * * *." Speaking of this provision, one commentator has said:

"The pull of the word `specifically\' is toward emphasis on statutory language and away from all else — away from implied meanings, away from reliance on legislative history, away from needed judicial legislation." K. Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 783 (1967).

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