EPA v. Mink
410 U.S. 73 (1973)

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U.S. Supreme Court

EPA v. Mink, 410 U.S. 73 (1973)

Environmental Protection Agency v. Mink

No. 71-909

Argued November 9, 1972

Decided January 22, 1973

410 U.S. 73




Respondent Members of Congress brought suit under the Freedom of Information Act of 1966 to compel disclosure of nine documents that various officials had prepared for the President concerning a scheduled underground nuclear test. All but three were classified as Top Secret or Secret under E.O. 10501, and petitioners represented that all were inter-agency or intra-agency documents used in the Executive Branch's decisionmaking processes. The District Court granted petitioners' motion for summary judgment on the grounds that each of the documents was exempt from compelled disclosure by 5 U.S.C. § 552(b)(1) (hereafter Exemption 1), excluding matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," and § 552(b)(5) (hereafter Exemption 5), excluding "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." The Court of Appeals reversed, concluding (a) that Exemption 1 permits nondisclosure of only the secret portions of classified documents but requires disclosure of the nonsecret components if separable, and (b) that Exemption 5 shields only governmental "decisional processes" and not factual information unless "inextricably intertwined with policymaking processes." The District Court was ordered to examine the documents in camera to determine both aspects of separability.


1. Exemption 1 does not permit compelled disclosure of the six classified documents or in camera inspection to sift out "non-secret components," and petitioners met their burden of demonstrating that the documents were entitled to protection under that exemption. Pp. 410 U. S. 79-84.

2. Exemption 5 does not require that otherwise confidential documents be made available for a district court's in camera inspection regardless of how little, if any, purely factual material they contain. In implying that such inspection be automatic, the Court of Appeals order was overly rigid, and petitioners should be afforded the opportunity of demonstrating by means short of

Page 410 U. S. 74

in camera inspection that the documents sought are clearly beyond the range of material that would be available to a private part in litigation with a Government agency. Pp. 410 U. S. 85-94.

150 U.S. App. D.C. 233, 464 F.2d 742, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and POWELL, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 410 U. S. 94. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 410 U. S. 95. DOUGLAS, J., filed a dissenting opinion, post, p. 410 U. S. 105. REHNQUIST, J., tool no part in the consideration or decision of the case.

MR. JUSTICE WHITE delivered the opinion of the Court.

The Freedom of Information Act of 1966, 5 U.S.C. § 552, provides that Government agencies shall make available to the public a broad spectrum of information, but exempts from its mandate certain specified categories of information, including matters that are "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," § 552(b)(1), or are

"inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency,"

§ 552(b)(5). It is the construction and scope of these exemptions that are at issue here.

Page 410 U. S. 75


Respondents' lawsuit began with an article that appeared in a Washington, D.C. newspaper in late July, 1971. The article indicated that the President had received conflicting recommendations on the advisability of the underground nuclear test scheduled for that coming fall and, in particular, noted that the "latest recommendations" were the product of "a departmental under-secretary committee named to investigate the controversy." Two days later, Congresswoman Patsy Mink, a respondent, sent a telegram to the President urgently requesting the "immediate release of recommendations and report by inter-departmental committee. . . ." When the request was denied, an action under the Freedom of Information Act was commenced by Congresswoman Mink and 32 of her colleagues in the House. [Footnote 1]

Petitioners immediately moved for summary judgment on the ground that the materials sought were specifically exempted from disclosure under subsections (b)(1) and (b)(5) of the Act. [Footnote 2] In support of the motion, petitioners filed an affidavit of John N. Irwin II, the Under Secretary

Page 410 U. S. 76

of State. Briefly, the affidavit states that Mr. Irwin was appointed by President Nixon as Chairman of an "Under Secretaries Committee," which was a part of the National Security Council system organized by the President "so that he could use it as an instrument for obtaining advice on important questions relating to our national security." The Committee was directed by the President in 1969

"to review the annual underground nuclear test program and to encompass within this review requests for authorization of specific scheduled tests."

Results of the Committee's reviews were to be transmitted to the President "in time to allow him to give them full consideration before the scheduled events." In

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