Respondent journalist filed a request with the Federal Bureau of
Investigation (FBI) pursuant to the Freedom of Information Act
(FOIA) for documents relating to the FBI's transmittal to the White
House of information concerning individuals who had criticized the
Presidential administration. The FBI denied the request under,
inter alia, Exemption 7(C) of the FOIA, which exempts from
disclosure "investigatory records compiled for law enforcement
purposes" when the release of such records would "constitute an
unwarranted invasion of personal privacy." After unsuccessful
administrative appeals, respondent filed suit in Federal District
Court to enjoin the FBI from withholding the requested documents.
While the suit was pending, the FBI provided respondent with
certain documents, and respondent then modified his request to seek
only a certain cover letter from the FBI to the White House, along
with the accompanying "name check" summaries containing information
culled from FBI files on the individuals in question, and certain
attached documents. The District Court granted the FBI's motion for
a summary judgment with respect to material withheld pursuant to
Exemption 7(C). The Court of Appeals reversed, holding that, except
for those documents attached to the "name check" summaries that may
have been duplicates of FBI files, the FBI had failed to show that
the documents were compiled for law enforcement purposes, and that,
accordingly, Exemption 7(C) was unavailable even though disclosure
would constitute an unwarranted invasion of personal privacy.
Held: Information contained in records originally
compiled for law enforcement purposes does not lose its Exemption 7
exemption where such information is reproduced or summarized in a
new document prepared for other than law enforcement purposes, but
continues to meet Exemption 7's threshold requirement of being
compiled for law enforcement purposes. Pp.
456 U. S.
621-632.
(a) Although the Court of Appeals' construction of Exemption 7's
threshold requirement as turning on the purpose for which the
document sought to be withheld was prepared, not on the purpose for
which the material included in the document was collected, is a
plausible one on the face of the statute, it is not the only
reasonable construction of the statutory language. The statutory
language is reasonably construable to
Page 456 U. S. 616
protect that part of an otherwise nonexempt compilation that
essentially reproduces and is substantially the equivalent of all
or part of an earlier record made for law enforcement uses. This
construction more accurately reflects Congress' intention, is more
consistent with the Act's structure, and more fully serves its
purposes. Pp.
456 U. S.
623-629.
(b) The legitimate interests in protecting information from
disclosure under Exemption 7 are not satisfied by other exemptions,
such as Exemption 6, which protects against unwarranted invasion of
personal privacy, and Exemption 5, which protects from disclosure
predecisional communications within an agency and other internal
documents. The reasons for an exemption under Exemption 7 remain
intact even though information in a law enforcement record is
recompiled in another document for other than law enforcement
purposes. Pp.
456 U. S.
629-630.
(c) The result in this case is consistent with the principle
that FOIA exemptions are to be narrowly construed, since there is
no request that Exemption 7 be expanded to agencies or material not
envisioned by Congress. Pp.
456 U. S.
630-631.
(d) Congress' concern with possible misuse of governmental
information for partisan political activity is not the equivalent
of a mandate to release any information that might document such
activity. Once it is established that information was compiled
pursuant to a legitimate law enforcement investigation and that
disclosure of such information would lead to one of the listed
harms under Exemption 7, the information is exempt. Congress thus
created a scheme of categorical exclusion and did not invite a
judicial weighing of the benefits and evils of disclosure on a
case-by-case basis. P.
456 U. S.
631.
212 U.S.App.D.C. 58, 658 F.2d 806, reversed and remanded.
WHITE J., delivered the opinion of the Court, in which BURGER,
C.J., and POWELL, REHNQUIST, and STEVENS, JJ., joined. BLACKMUN,
J., filed a dissenting opinion, in which BRENNAN, J., joined,
post, p.
456 U. S. 632.
O'CONNOR, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
456 U. S.
633.
Page 456 U. S. 617
JUSTICE WHITE delivered the opinion of the Court.
The Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976 ed.
and Supp. IV), does not require the disclosure of "investigatory
records compiled for law enforcement purposes" when the release of
such records would interfere with effective law enforcement, impede
the administration of justice, constitute an unwarranted invasion
of privacy, or produce certain other specified consequences. §
552(b)(7). [
Footnote 1]
Page 456 U. S. 618
The sole question presented in this case is whether information
contained in records compiled for law enforcement purposes loses
that exempt status when it is incorporated into records compiled
for purposes other than law enforcement.
I
Respondent Howard Abramson is a professional journalist
interested in the extent to which the White House may have used the
Federal Bureau of Investigation (FBI) and its files to obtain
derogatory information about political opponents. On June 23, 1976,
Abramson filed a request pursuant to FOIA for specific documents
relating to the transmittal from the FBI to the White House in 1969
of information concerning particular individuals who had criticized
the administration. [
Footnote
2] The Bureau denied the request on grounds that the
information was exempt from disclosure pursuant to § 552(b) (6)
(Exemption 6) and § 552(b)(7)(C) (Exemption 7(C)), both
Page 456 U. S. 619
of which protect against unwarranted invasions of personal
privacy. Abramson, believing his first request was flawed by its
specificity, filed a much broader request, [
Footnote 3] which was denied for failure to "reasonably
describe the records sought" as required by § 552(a)(3).
In December, 1977, after unsuccessfully appealing both denials
within the agency, Abramson filed suit in the United States
District Court for the District of Columbia to enjoin the FBI from
withholding the requested records. While the suit was pending, the
FBI provided Abramson with 84 pages of documents, some intact and
some with deletions. The District Court rejected the Bureau's
assertions that all deleted material was exempt.
Abramson v.
U.S. Dept. of Justice, Civ. Action No. 77-2206 (Jan. 3, 1979).
In response, the FBI submitted an affidavit to the District Court
explaining the justification for each deletion. In light of the
released material and the Bureau's affidavit, Abramson modified
Page 456 U. S. 620
his request, seeking only the material withheld from a single
document consisting of a one-page memorandum from J. Edgar Hoover
to John D. Ehrlichman, together with approximately 63 pages of
"name check" summaries and attached documents. The "name check"
summaries contained information, culled from existing FBI files, on
11 public figures.
The District Court found that the FBI had failed to show that
the information was compiled for law enforcement, rather than
political, purposes, but went on to rule that Exemption 7(C) was
validly invoked by the Government because disclosure of the
withheld materials would constitute an unwarranted invasion of
personal privacy. The District Court thus granted the Government's
motion for summary judgment with respect to material withheld
pursuant to Exemption 7(C).
Abramson v. FBI, Civ. Action
No. 77-2206 (Nov. 30, 1979).
The Court of Appeals reversed, holding that, with the exception
of those documents attached to the summaries that may have been
duplicates of original FBI files, [
Footnote 4] the Government had failed to sustain its
burden of demonstrating that the documents were compiled for law
enforcement purposes, and that Exemption 7(C) was therefore
unavailable even though disclosure would constitute an unwarranted
invasion of personal privacy. 212 U.S.App.D.C. 58, 658 F.2d
Page 456 U. S. 621
806 (1980). To reach this conclusion, the Court of Appeals
rejected the Government's claim that Exemption 7(C) was applicable
because the "name check" summaries contained information taken from
documents in FBI files that had been created for law enforcement
purposes. Thus, with the exception noted, the Government's
invocation of Exemption 7(C) was rejected. Because this
interpretation of the Exemption has important ramifications for law
enforcement agencies, for persons about whom information has been
compiled, and for the general public, we granted certiorari. 452
U.S. 937 (1981). We now reverse.
II
The Freedom of Information Act sets forth a policy of broad
disclosure of Government documents in order "to ensure an informed
citizenry, vital to the functioning of a democratic society."
NLRB v. Robbins Tire Rubber Co., 437 U.
S. 214,
437 U. S. 242
(1978);
EPA v. Mink, 410 U. S. 73,
410 U. S. 80
(1973). Yet Congress realized that legitimate governmental and
private interests could be harmed by release of certain types of
information, and provided nine specific exemptions under which
disclosure could be refused. Here we are concerned with Exemption
7, which was intended to prevent premature disclosure of
investigatory materials which might be used in a law enforcement
action. This provision originally exempted "investigatory files
compiled for law enforcement purposes except to the extent
available by law to a private party." A sweeping interpretation
given the Exemption by some courts permitted the unlimited
withholding of files merely by classifying them as investigatory
files compiled for law enforcement purposes. As a result, the
Exemption underwent
Page 456 U. S. 622
a major revision in 1974. As amended, Exemption 7 authorizes
disclosure of law enforcement records unless the agency can
demonstrate one of six specific harms. The provision now
protects
"investigatory records compiled for law enforcement purposes but
only to the extent that the production of such records would (A)
interfere with enforcement proceedings, (B) deprive a person of a
right to a fair trial or an impartial adjudication, (C) constitute
an unwarranted invasion of personal privacy, (D) disclose the
identity of a confidential source and, in the case of a record
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential
information furnished only by the confidential source, (E) disclose
investigative techniques and procedures, or (F) endanger the life
or physical safety of law enforcement personnel."
5 U.S.C. § 552(b)(7). The language of the Exemption indicates
that judicial review of an asserted Exemption 7 privilege requires
a two-part inquiry. First, a requested document must be shown to
have been an investigatory record "compiled for law enforcement
purposes." If so, the agency must demonstrate that release of the
material would have one of the six results specified in the Act.
[
Footnote 5]
Page 456 U. S. 623
As the case comes to us, it is agreed that the information
withheld by the Bureau was originally compiled for law enforcement
purposes. It is also settled that the name check summaries were
developed pursuant to a request from the White House for
information about certain public personalities, and were not
compiled for law enforcement purposes. Finally, it is not disputed
that, if the threshold requirement of Exemption 7 is met -- if the
documents were compiled for law enforcement purposes -- the
disclosure of such information would be an unwarranted invasion of
privacy. The sole question for decision is whether information
originally compiled for law enforcement purposes loses its
Exemption 7 protection if summarized in a new document not created
for law enforcement purposes.
III
No express answer is provided by the statutory language or by
the legislative history. The Court of Appeals resolved the question
in favor of Abramson by construing the threshold requirement of
Exemption 7 in the following manner. The cover letter to the White
House, along with the accompanying summaries and attachments,
constituted a "record." Because that "record" was not compiled for
law enforcement purposes, the material within it could not qualify
for the exemption, regardless of the purpose for which that
material was originally gathered and recorded and regardless of the
impact that disclosure of such information would produce. The Court
of Appeals supported its interpretation by distinguishing between
documents and information.
"[T]he statutory scheme of the FOIA very clearly indicates that
exemptions from disclosure apply only to documents, and not to the
use of the information contained in such documents."
212 U.S.App.D.C. at 65, 658 F.2d at 813. [
Footnote 6] A "record" is a
Page 456 U. S. 624
"document" and, for the Court of Appeals, the document must be
treated as a unit for purposes of deciding whether it was prepared
for law enforcement purposes. The threshold requirement for
qualifying under Exemption 7 turns on the purpose for which the
document sought to be withheld was prepared, not on the purpose for
which the material included in the document was collected. The
Court of Appeals would apply this rule even when the information
for which the exemption is claimed appears in the requested
document in the form essentially identical to the original
memorialization.
The Court of Appeals' view is a tenable construction of
Exemption 7, but there is another interpretation, equally plausible
on the face of the statute, of the requirement that the record
sought to be withheld must have been prepared for law enforcement
purposes. If a requested document, such as the one sent to the
White House in this case, contains or essentially reproduces all or
part of a record that was previously compiled for law enforcement
reasons, it is reasonably arguable that the law enforcement record
does not lose its exemption by its subsequent inclusion in a
document created for a nonexempt purpose. The Court of Appeals
itself pointed the way to this alternative construction by
indicating that Exemption 7 protected attachments to the name check
summaries that were duplicates of original records compiled for law
enforcement purposes. Those records would not lose their exemption
by being included in a later compilation made for political
purposes. Although in this case the duplicate law enforcement
records were attached to the name check summaries, the result
hardly should be different if all or part
Page 456 U. S. 625
of the prior record were quoted
verbatim in the new
document. That document, even though it may be delivered to another
agency for a nonexempt purpose, contains a "record" qualifying for
consideration under Exemption 7.
The question is whether FOIA permits the same result where the
exempt record is not reproduced verbatim, but is accurately
reflected in summary form. The Court of Appeals would have it that,
because the FBI summarized the relevant records, rather than
reproducing them verbatim, the identical information no longer
qualifies for the exemption. The originally compiled record and the
derivative summary would be treated completely differently although
the content of the information is the same and although the reasons
for maintaining its confidentiality remain equally strong. We are
of the view, however, that the statutory language is reasonably
construable to protect that part of an otherwise nonexempt
compilation which essentially reproduces, and is substantially the
equivalent of, all or part of an earlier record made for law
enforcement uses. Moreover, that construction of the statute,
rather than the interpretation embraced by the Court of Appeals,
more accurately reflects the intention of Congress, is more
consistent with the structure of the Act, and more fully serves the
purposes of the statute. [
Footnote
7]
Page 456 U. S. 626
FOIA contains no definition of the term "record." [
Footnote 8] Throughout the legislative
history of the 1974 amendments, Representatives and Senators used
interchangeably such terms as "documents," "records," "matters,"
and "information." [
Footnote 9]
Furthermore, in determining whether information in a requested
record should be released, the Act consistently focuses on the
nature of the information and the effects of disclosure. After
enumerating the nine exemptions from FOIA, Congress expressly
directed that "[a]ny reasonably segregable portion of a record" be
"provided to any person requesting such record after deletion of
the portions which are exempt. . . ." § 552(b). This provision
requires agencies and courts to differentiate among the contents of
a document, rather than to treat it as an indivisible "record" for
FOIA purposes. When a record is requested, it is permissible for an
agency to divide the record into parts that are exempt and parts
that are not exempt, based on the kind of information contained in
the respective parts.
The 1974 amendments modified Exemption 7 in two ways. First, by
substituting the word "records" for "files," Congress intended for
courts to
"consider the nature of the particular document as to which
exemption was claimed, in order to avoid the possibility of
impermissible 'commingling' by an
Page 456 U. S. 627
agency's placing in an investigatory file material that did not
legitimately have to be kept confidential."
NLRB v. Robbins Tire & Rubber Co., 437 U.S. at
437 U. S.
229-230. [
Footnote
10] Second, by enumerating six particular objectives of the
Exemption, the amendments required reviewing courts to "loo[k] to
the reasons" for allowing withholding of information.
Id.
at
437 U. S. 230.
The requirement that one of six types of harm must be demonstrated
to prevent production of a record compiled for law enforcement
purposes was a reaction to a line of cases decided by the Court of
Appeals for the District of Columbia Circuit which read the
original Exemption 7 as protecting all law enforcement files.
[
Footnote 11] The amendment
requires that the Government "specify some harm in order to claim
the exemption," rather than "affording all law enforcement matters
a blanket exemption." 120 Cong.Rec. 36626 (1974), 1975 Source Book
413 (statement of Rep. Reid). The enumeration
Page 456 U. S. 628
of these categories of undesirable consequences indicates
Congress believed the harm of disclosing this type of information
would outweigh its benefits. There is nothing to suggest, and no
reason for believing, that Congress would have preferred a
different outcome simply because the information is now reproduced
in a non-law enforcement record.
The Court of Appeals would protect information compiled in a law
enforcement record when transferred in original form to another
agency for nonexempt purposes, but would withdraw that protection
if the same information or record is transmitted in slightly
different form. In terms of the statutory objectives, this
distinction makes little sense. [
Footnote 12] If the Court of Appeals is correct that this
kind of information should be disclosed, its position leaves an
obvious means of qualifying for the exemption -- transmittal of the
law enforcement records intact. Conversely, to the extent that
Congress intended information initially gathered in the course of a
law enforcement investigation to remain private, the Court
Page 456 U. S. 629
of Appeals' decision creates a substantial prospect that this
purpose, the very reason for Exemption 7's existence, will no
longer be served.
IV
Neither are we persuaded by the several other arguments Abramson
submits in support of the decision below.
First, we reject the argument that the legitimate interests in
protecting information from disclosure under Exemption 7 are
satisfied by other exemptions when a record has been recompiled for
a non-law enforcement purpose. In particular, Abramson submits that
Exemption 6 suffices to protect the privacy interest of
individuals. Even if this were so with respect to the particular
information requested in this case, the threshold inquiry of what
constitutes compilation for law enforcement purposes must be
considered with regard for all six of the types of harm stemming
from disclosure that Congress sought to prevent. Assuming that
Exemption 6 provided fully comparable protection against
disclosures which would constitute unwarranted invasions of
privacy, a questionable proposition itself, [
Footnote 13] no such companion provision in FOIA
would halt the disclosure of information that might deprive an
individual of a fair trial, interrupt a law enforcement
investigation, safeguard confidential law enforcement techniques,
or even protect the physical wellbeing of law enforcement
Page 456 U. S. 630
personnel. No other provision of FOIA could compensate for the
potential disruption in the flow of information to law enforcement
agencies by individuals who might be deterred from speaking because
of the prospect of disclosure. It is therefore critical that the
"compiled for law enforcement" requirement be construed to avoid
the release of information that would produce the undesirable
results specified.
For much the same reason, the result we reach today is fully
consistent with our holding in
NLRB v. Sears, Roebuck &
Co., 421 U. S. 132,
421 U. S.
148-154 (1975), that Exemption 5, § 552(b)(5), an
exemption protecting from mandatory disclosure predecisional
communications within an agency and other internal documents, does
not protect internal advisory communications when incorporated in a
final agency decision. The purposes behind Exemption 5, protecting
the give-and-take of the decisional process, were not violated by
disclosure once an agency chooses expressly to adopt a particular
text as its official view. As we have explained above, this cannot
be said here. The reasons for an Exemption 7 exemption may well
remain intact even though information in a law enforcement record
is recompiled in another document for a non-law enforcement
function.
The result is also consistent with the oft-repeated caveat that
FOIA exemptions are to be narrowly construed,
Department of Air
Force v. Roe, 425 U. S. 352,
425 U. S. 361
(1976). While Congress established that the basic policy of the Act
is in favor of disclosure, it recognized the important
interests
Page 456 U. S. 631
served by the exemptions. We are not asked in this case to
expand Exemption 7 to agencies or material not envisioned by
Congress:
"It is . . . necessary for the very operation of our Government
to allow it to keep confidential certain material such as the
investigatory files of the Federal Bureau of Investigation."
S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). Reliance on
this principle of narrow construction is particularly unpersuasive
in this case, where it is conceded that the information as
originally compiled is exempt under Exemption 7 and where it is the
respondent, not the Government, who urges a formalistic reading of
the Act.
We are not persuaded that Congress' undeniable concern with
possible misuse of governmental information for partisan political
activity is the equivalent of a mandate to release any information
which might document such activity. Congress did not differentiate
between the purposes for which information was requested.
NLRB
v. Sears, Roebuck d Co., supra, at
421 U. S. 149.
Rather, the Act required assessment of the harm produced by
disclosure of certain types of information. Once it is established
that information was compiled pursuant to a legitimate law
enforcement investigation and that disclosure of such information
would lead to one of the listed harms, the information is exempt.
Congress thus created a scheme of categorical exclusion; it did not
invite a judicial weighing of the benefits and evils of disclosure
on a case-by-case basis. [
Footnote 14]
V
We therefore find that the construction adopted by the Court of
Appeals, while plausible on the face of the statute, lacks support
in the legislative history and would frustrate the purposes of
Exemption 7. We hold that information initially
Page 456 U. S. 632
contained in a record made for law enforcement purposes
continues to meet the threshold requirements of Exemption 7 where
that recorded information is reproduced or summarized in a new
document prepared for a non-law enforcement purpose. Of course, it
is the agency's burden to establish that the requested information
originated in a record protected by Exemption 7. The Court of
Appeals refused to consider such a showing as a sufficient reason
for withholding certain information. The judgment of the Court of
Appeals is therefore reversed, and the case is remanded to that
court for further proceedings consistent with this opinion.
So ordered.
[
Footnote 1]
Section 552(b) in its entirety provides:
"This section does not apply to matters that are -- "
"(1)(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;"
"(2) related solely to the internal personnel rules and
practices of an agency;"
"(3) specifically 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;"
"(4) trade secrets and commercial or financial information
obtained from a person and privileged or confidential;"
"(5) 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;"
"(6) personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion
of personal privacy;"
"(7) investigatory records compiled for law enforcement
purposes, but only to the extent that the production of such
records would (A) interfere with enforcement proceedings, (B)
deprive a person of a right to a fair trial or an impartial
adjudication, (C) constitute an unwarranted invasion of personal
privacy, (D) disclose the identity of a confidential source and, in
the case of a record compiled by a criminal law enforcement
authority in the course of a criminal investigation, or by an
agency conducting a lawful national security intelligence
investigation, confidential information furnished only by the
confidential source, (E) disclose investigative techniques and
procedures, or (F) endanger the life or physical safety of law
enforcement personnel;"
"(8) contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions; or"
"(9) geological and geophysical information and data, including
maps, concerning wells."
"Any reasonably segregable portion of a record shall be provided
to any person requesting such record after deletion of the portions
which are exempt under this subsection."
[
Footnote 2]
Abramson sought the following documents:
"-- copies of any and all information contained in [FBI] files
showing or indicating the transmittal of any documents or
information from the FBI to the White House, or any White House
aides, for the years 1969 and 1970, concerning the following
individuals: Lowell P. Weicker, Jr.; Thomas J. Meskill; Joseph
Duffey; Thomas J. Dodd; Alphonsus J. Donahue; John Lupton; Wallace
C. Barnes; and Emilio Q. Daddario."
"-- Copies of any and all information so transmitted."
"-- An uncensored copy of the Oct. 6, 1969, letter from J. Edgar
Hoover to John D. Ehrlichman by which Mr. Hoover transmits
'memoranda' on several individuals to Mr. Ehrlichman."
"-- A copy of the original request letter from Mr. Ehrlichman to
Mr. Hoover for that data."
"-- Copies of all data so transmitted by the Oct. 6, 1969 letter
from Mr. Hoover to Mr. Ehrlichman."
"-- A copy of the receipt signed by the recipient at the White
House of the Oct. 6, 1969, letter."
212 U.S.App.D.C. 58, 60, 658 F.2d 806, 808 (1980).
[
Footnote 3]
In his revised request, Abramson sought the following
documents:
"-- All written requests and written records of oral or
telephone requests from the White House or any person employed by
the White House to the FBI for information about any person who was
in 1969, 1970, 1971, 1972, 1973, or 1974 the holder of a federal
elective office or a candidate for federal elective office."
"-- All written replies and records of oral or telephonic
replies from the FBI to the White House in response to requests
described in paragraph one."
"-- Any index or indices to requests or replies described in
paragraphs one and two."
Id. at 61, 658 F.2d at 809.
[
Footnote 4]
The District Court did not consider the summaries and
attachments separately for Exemption 7(C) purposes. The Court of
Appeals was "satisfied that the
name check' summaries were not
compiled for legitimate law enforcement purposes," but was "less
sure" of the "attachments," being unable to determine their precise
nature or the purposes for which they were originally created. The
Court of Appeals stated that, if the "attachments" documents were
already in existence and a part of the FBI files prior to the White
House's "name check" requests, and if these original documents were
sent to the White House as initially compiled, without
modification, then a determination would have to be made whether
these documents meet the threshold requirements of Exemption 7.
Thus, the Court of Appeals remanded to the District Court for a
finding on whether the "attachments" were the original documents in
FBI files and whether they were originally compiled pursuant to a
legitimate law enforcement investigation.
[
Footnote 5]
The Attorney General's Memorandum on the 1974 Amendments to the
FOIA 6 (1975) reads the amendments in this manner. Respondent
places undue emphasis on this document and the direction to first
determine whether a record has been compiled for law enforcement
purposes and then examine whether one of the six harms are
involved. This is, of course, the prescribed order in which a court
should interpret the Exemption. It does not necessarily mean,
however, that information admittedly compiled in a law enforcement
record loses its exemption when recompiled. The Attorney General's
memorandum submits that the test is whether the requested material
"reflect[s] or result[s] from investigative efforts" into civil or
criminal enforcement matters.
Ibid.
[
Footnote 6]
The Court of Appeals supported this distinction by referring to
two of its earlier FOIA decisions.
Simpson v. Vance, 208
U.S.App.D.C. 270, 648 F.2d 10 (1980), held that a State Department
Biographic Register was not exempt from disclosure even though the
information in the Register was extracted from personnel files
which may have been exempt under Exemption 6 of FOIA.
Lesar v.
United States Department of Justice, 204 U.S.App.D.C. 200, 636
F.2d 472 (1980), held that summaries of FBI surveillance record did
not lose their exempt status because the underlying original
surveillance record from which the summaries were compiled may not
have been gathered for legitimate law enforcement purposes. As we
understand those cases, however, neither of them is inconsistent
with the result we reach today.
[
Footnote 7]
We would agree with much of JUSTICE O'CONNOR's dissenting
opinion if we accepted its premise that the language of the statute
is "plain" in the sense that it can reasonably be read only as the
dissent would read it. But we do not agree with that premise: "The
notion that, because the words of a statute are plain, its meaning
is also plain, is merely pernicious oversimplification."
United
States v. Monia, 317 U. S. 424,
317 U. S. 431
(1943) (Frankfurter, J., dissenting). Given our view that there is
a reasonable alternative construction of Exemption 7, much of
JUSTICE O'CONNOR's dissent is rhetorical and beside the point. For
our duty then is
"to find that interpretation which can most fairly be said to be
imbedded in the statute, in the sense of being most harmonious with
its scheme and with the general purposes that Congress
manifested."
NLRB v. Lion Oil Co., 352 U. S. 282,
352 U. S. 297
(1957) (Frankfurter, J., concurring in part and dissenting in
part).
[
Footnote 8]
While Congress' definition of "records" in the Records Disposal
Act and the Presidential Records Act of 1978 was helpful to us in
determining that an agency must create or obtain a record before
information to which the Government has access can be considered an
"agency record,"
Forsham v. Harris, 445 U.
S. 169,
445 U. S.
183-184 (1980), the definition of terms in these Acts
does not aid in resolving the issue presented in this case.
[
Footnote 9]
See, e.g., 120 Cong.Rec. 17033 (1974), House Committee
on Government Operations and Senate Committee on the Judiciary,
Freedom of Information Act and Amendments of 1974 (Pub.L. 93-502),
Source Book, 94th Cong., 1st Sess., 333 (Joint Comm. Print 1975)
(hereafter 1975 Source Book) (remarks of Sen. Hart); 120 Cong.Rec.
17034 (1974), 1975 Source Book 335 (remarks of Sen. Kennedy); 120
Cong.Rec. 36626 (1974), 1975 Source Book 413 (remarks of Rep.
Reid); 120 Cong.Rec. 368776878 (1974), 1975 Source Book 468
(remarks of Sen. R. Byrd); H.R.Conf.Rep. No. 93-1380, p. 13 (1974),
1975 Source Book 230.
[
Footnote 10]
There is no claim that the "name check" summaries are protected
against disclosure
in toto because of the presence of some
material falling squarely within Exemption 7.
[
Footnote 11]
Senator Hart, the sponsor of the 1974 amendment, stated
specifically that the amendment's purpose was to respond to four
decisions of the Court of Appeals for the District of Columbia
Circuit which cumulatively held that all material found in an
investigatory file compiled for law enforcement purposes was
exempt, even if an enforcement proceeding were neither imminent nor
likely.
Weisberg v. United States Dept. of Justice, 160
U.S.App.D.C. 71, 74, 489 F.2d 1195, 1198 (1973),
cert.
denied, 416 U.S. 993 (1974);
Aspin v. Department of
Defense, 160 U.S.App.D.C. 231, 237, 491 F.2d 24, 30 (1973);
Ditlow v. Brinegar, 161 U.S.App.D.C. 154, 494 F.2d 1073
(1974);
Center for National Policy Review on Race and Urban
Issues v. Weinberger, 163 U.S.App.D.C. 368, 502 F.2d 370
(1974). These four cases, in Senator Hart's view, erected a "stone
wall" preventing public access to any material in an investigatory
file. 120 Cong.Rec. 17033 (1974), 1975 Source Book 332.
See
NLRB v. Robbins Tire & Rubber Co., 437 U.
S. 214,
437 U. S.
227-229 (1978). The Conference Report on the 1974
amendment similarly states that the amendment was designed to
communicate Congress' disapproval of these court decisions.
H.R.Conf.Rep. No. 93-1380, at 12, 1975 Source Book 229. Because the
disapproved decisions cut far more broadly into the Act than the
present issue, we cannot infer that Congress intended all
subsidiary questions concerning Exemption 7's scope to be resolved
against the Government.
[
Footnote 12]
Information transmitted for a non-law enforcement purpose may
well still be used in an ongoing investigation. Moreover, by
compromising the confidentiality of information gathered for law
enforcement purposes, the Court of Appeals' decision could result
in restricting the flow of essential information to the Government.
Deputy Attorney General Schmults stated before the Second Circuit
Judicial Conference (May 9, 1981):
"The risk of disclosure of FBI records has made private persons,
nonfederal law enforcement officials, and informants reticent about
providing vital information. Many informants have actually stopped
cooperating with the FBI, for example, because they feared that
their identities would be disclosed under the Act."
As quoted in Kennedy, Foreword: Is The Pendulum Swinging Away
From Freedom of Information?, 16 Harv.Civ.Rights Civ.Lib.L.Rev.
311, 315 (1981).
See FOIA Update 1 (Dept. of Justice,
Sept.1981) ("[E]xperiences of the FBI and DEA indicate that there
is a widespread perception among confidential information sources
that federal investigators cannot fully guarantee the
confidentiality of information because of FOIA"). The Drug
Enforcement Administration claims that 40% of FOIA requests come
from convicted felons, many of whom are seeking information with
which to identify the informants who helped to convict them.
Freedom of Information Act Oversight, Hearings before a
Subcommittee of the House Committee on Government Operations, 97th
Cong., 1st Sess., 165 (1981) (statement of Jonathan Rose, Dept. of
Justice);
see also U.S. Dept. of Justice, Attorney
General's Task Force on Violent Crime, Final Report 32 (1981).
The Court has previously recognized that the purposes of the
exemptions do not disappear when information is incorporated in a
new document or otherwise put to a different use.
See NLRB v.
Sears, Roebuck & Co., 421 U. S. 132,
421 U. S. 166
(1975) (Document protected by Exemption 7 does not become
discloseable solely because it is referred to in a final agency
opinion; "reasons underlying Congress' decision to protect
investigatory files [remain] applicable").
[
Footnote 13]
Exemption 6 protects against disclosure of information which
would constitute a "clearly unwarranted" invasion of privacy.
Exemption 7 does not require that the harm to privacy be clearly"
unwarranted. The distinction is meaningful. As we noted in
Department of Air Force v. Rose, 425 U.
S. 352,
425 U. S. 379,
n. 16 (1976), the Conference Committee dropped the "clearly" in
response to a Presidential request, 120 Cong.Rec. 33158-33159
(1974), 1975 Source Book 368-372 (letters between President Ford
and Sen. Kennedy); 120 Cong.Rec. 34162-34163 (1974), 1975 Source
Book 377-380 (letters between President Ford and Cong. Moorhead),
and the bill was enacted as reported by the Conference Committee,
88 Stat. 1563. Thus, even with respect to Exemption 7(C), it should
not be assumed that Exemption 6 would provide overlapping
protection.
[
Footnote 14]
To be sure, the rule crafted by the Court of Appeals might deter
the interagency transfer of information initially gathered for law
enforcement purposes, but it should be remembered that FOIA is
legislation directed at securing public access to information, not
an Act intended to interdict the flow of information among
Government agencies.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN joins,
dissenting.
Exemption 7 of the Freedom of Information Act, 5 U.S.C. §
552(b)(7), permits agencies to withhold
"investigatory
records compiled for law enforcement
purposes, but only to the extent that the production of such
records would . . . (C) constitute an unwarranted invasion
of personal privacy."
(Emphasis added.) The Court today holds that this language
authorizes petitioner FBI to withhold investigatory records
not compiled for law enforcement purposes simply because
some information contained in those records was compiled for such
purposes. The Court declares that
"[o]nce it is established that
information was compiled
pursuant to a legitimate law enforcement investigation and that
disclosure of such
information would lead to one of the
listed harms [in Exemption 7], the
information is
exempt."
Ante at
456 U. S. 631
(emphasis added).
I cannot escape the conclusion that the Court has simply
substituted the word "information" for the word "records" in
Exemption 7(C). Yet we have earlier recognized that "[t]he Freedom
of Information Act deals with
agency records,' not information
in the abstract." Forsham v. Harris, 445 U.
S. 169, 446 U. S. 185
(1980). I agree with JUSTICE O'CONNOR's assessment
Page 456 U. S. 633
that the legislative history reveals that Congress chose the
term "records," rather than the word "information," advisedly. The
Court's unwillingness to give the statutory language its plain
meaning requires judges who are evaluating Exemption 7(C) claims to
parse agency records and determine whether any piece of information
contained in those records was originally compiled for a law
enforcement purpose. Because the Court presents no reason,
convincing to me, why its deviation from the statutory language is
necessary or desirable, I respectfully dissent.
JUSTICE O'CONNOR, with whom JUSTICE MARSHALL joins,
dissenting.
Justice Frankfurter once explained the limits of statutory
construction as follows:
"[T]he courts are not at large. . . . They are under the
constraints imposed by the judicial function in our democratic
society. As a matter of verbal recognition, certainly, no one will
gainsay that the function in construing a statute is to ascertain
the meaning of words used by the legislature. To go beyond it is to
usurp a power which our democracy has lodged in its elected
legislature. . . . A judge must not rewrite a statute, neither to
enlarge nor to contract it. Whatever temptations the statesmanship
of policymaking might wisely suggest, construction must eschew
interpolation and evisceration. He must not read in by way of
creation. He must not read out except to avoid patent nonsense or
internal contradiction. . . ."
"
* * * *"
"[T]he only sure safeguard against crossing the line between
adjudication and legislation is an alert recognition of the
necessity not to cross it and instinctive, as well as trained,
reluctance to do so."
Frankfurter, Some Reflections on the Reading of Statutes, 47
Colum.L.Rev. 527, 533, 535 (1947).
Page 456 U. S. 634
The Court does not approach this case in that spirit. Instead,
it redrafts the statutory phrase "investigatory records compiled
for law enforcement purposes" to exempt investigatory records that
"were
not compiled for law enforcement purposes,"
ante at
456 U. S. 623
(emphasis added). [
Footnote 2/1]
Unfortunately, none of the usual grounds of statutory construction
supports the Court's result. First, there is no doubt that, if
Exemption 7 is given the straightforward interpretation based on
its plain language that the Court concedes is both "tenable,"
ante at
456 U. S. 624,
and "plausible,"
ante at
456 U. S. 631,
the name check summaries do not qualify for exemption. Second, the
rather sparse legislative history of the Exemption provides, as the
Court admits,
ante at
456 U. S. 623,
"[n]o express answer" regarding the meaning of the Exemption,
leaving the Court no reason for overriding the usual presumption
that the plain language of a statute controls its construction.
Finally, the straightforward interpretation of Exemption 7,
rejected by the Court, does not lead to consequences so absurd that
one is forced to conclude that Congress could not have meant what
it said in the Exemption.
Page 456 U. S. 635
Under these circumstances, the Court's rejection of the plain
language of the Exemption must be viewed as an effort to perfect
the FOIA by judicial alteration. Since reform of legislation is a
task constitutionally allocated to Congress, not this Court, I
believe the Court today errs. I respectfully dissent.
I
A
"[S]tatutory construction 'must begin with the language of the
statute itself,' and, '[a]bsent a clearly expressed legislative
intention to the contrary, that language must ordinarily be
regarded as conclusive.'"
Bread Political Action Committee v. FEC, 455 U.
S. 577,
455 U. S. 580
(1982) (citations omitted). In approaching a statute, moreover, a
judge must presume that Congress chose its words with as much care
as the judge himself brings to bear on the task of statutory
interpretation. I begin, therefore, by focusing attention on the
pertinent language of Exemption 7.
At issue in this case [
Footnote
2/2] is the meaning of the seven-word phrase Congress used to
describe the documents it intended to exempt: "investigatory
records compiled for law enforcement purposes." The Exemption's
syntax is plain and unambiguous: "records" is twice modified,
first, by "investigatory" and then by "compiled for law enforcement
purposes." Congress evidently meant to exempt "records" that are
both "investigatory" and "compiled for law enforcement purposes."
[
Footnote 2/3]
Page 456 U. S. 636
Since neither of the parties before this Court contends that the
District Court erred in finding that the records at issue, though
perhaps "investigatory," were "not compiled for law enforcement
purposes,"
ante at
456 U. S. 623,
the case would, at first blush, seem to be over: the documents
withheld by the FBI do not fit within the language of the Exemption
and, therefore, must be released to the respondent. [
Footnote 2/4]
The logic of this straightforward result is all the more
compelling in light of the canons of construction peculiar to FOIA
cases. As we have emphasized before, the enumerated exemptions to
the FOIA "[were] explicitly made exclusive,"
EPA v. Mink,
410 U. S. 73,
410 U. S. 79
(1973), and "must be narrowly construed."
Department of Air
Force v. Rose, 425 U. S. 352,
425 U. S. 361
(1976) (citations omitted). [
Footnote
2/5] The reason for preferring a narrow construction is simply
that "
the recognized principal purpose of the FOIA requires us
to choose that interpretation
Page 456 U. S.
637
most favoring disclosure.'" Id. at 425 U. S. 366,
quoting Vaughn v. Rosen, 173 U.S.App.D.C. 187, 193, 523
F.2d 1136, 1142 (1975). Even if it were possible to concoct genuine
doubts about the plain meaning of Exemption 7's language,
therefore, those doubts would have to be resolved in favor of
disclosure.
Under the conceded facts of the present case, however, no doubts
arise. [
Footnote 2/6] The records
at issue were not "compiled for
Page 456 U. S. 638
law enforcement purposes." The statutory language thus clearly
proclaims that the documents are not exempt from disclosure. As
Chief Justice Marshall wrote more than a century and a half
ago:
"The intention of the legislature is to be collected from the
words they employ. Where there is no ambiguity in the words, there
is no room for construction."
United States v. Wiltberger, 5 Wheat. 76,
18 U. S. 95-96
(1820).
B
Of course, while it is elementary that the plain language
interpretation of a statute enjoys a robust presumption in its
favor, [
Footnote 2/7] it is also
true that Congress cannot, in every instance, be counted on to have
said what it meant, or to have meant what it said. Statutes,
therefore, "are not to be construed so strictly as to defeat the
obvious intention of the legislature."
Id. at
18 U. S. 95.
Thus, a "clearly expressed legislative intention" to the contrary
could dislodge the meaning apparent from the plain language of
Exemption 7, even though that meaning "must ordinarily be regarded
as conclusive,"
Consumer Product Safety Comm'n v. GTE Sylvania,
Inc., 447 U. S. 102,
447 U. S. 108
(1980). [
Footnote 2/8]
Page 456 U. S. 639
The Court, however, rejects the plain language of Exemption 7
without identifying any "obvious" evidence pf a "clearly expressed"
congressional intention to have Exemption 7 mean something other
than what it says. [
Footnote 2/9]
In fact, the Court candidly admits that "[n]o express answer is
provided . . . by the legislative history,"
ante at
456 U. S. 623,
which explains, perhaps, why the Court's opinion is nearly devoid
of references to it.
The Court cites the legislative history of the 1974 amendment to
Exemption 7 no more than four times during the course of its
opinion. None of those citations provides anything like sufficient
grounds for displacing the plain meaning of the Exemption.
[
Footnote 2/10] In fact, none of
the Court's four citations directly addresses the question. In sum,
the Exemption's
Page 456 U. S. 640
legislative history provides no basis whatever for ignoring the
words of the Act. [
Footnote
2/11]
C
Even without the legislative history on its side, to be sure,
the Court might be entitled to reject the plain language of
Exemption 7 in order to avoid "patently absurd consequences,"
United States v. Brown, 333 U. S. 18,
333 U. S. 27
(1948), that Congress could not possibly have intended. The Court,
however, cannot, and does not, claim that the plain language of
Exemption 7 leads to such results, though the Court does level a
lesser charge. In the Court's words:
"The Court of Appeals would protect information compiled in a
law enforcement record when transferred in original form to another
agency for nonexempt purposes, but would withdraw that protection
if the same information or record is transmitted in slightly
different form. In terms of the statutory objectives, this
distinction makes little sense."
Ante at
456 U. S. 628
(footnote omitted). In short, the Court accuses Congress of having
arbitrarily drawn the line between exempt and nonexempt
materials.
Congress, however, ordinarily is free to draw lines without
cavil from this Court, so long as it respects the constitutional
proprieties. We do not, and should not, make it our business
Page 456 U. S. 641
to second-guess the Legislature's judgment when it comes to such
matters. Line-drawing, after all, frequently requires arbitrary
decisions that cannot sensibly be subjected to judicial review.
[
Footnote 2/12]
"In terms of the statutory objectives," moreover, it is plain
that the principal purpose of the FOIA was "to establish a general
philosophy of full agency disclosure," S.Rep. No. 813, 89th Cong.,
1st Sess., 3 (1965), in order "to permit access to official
information long shielded unnecessarily from public view," even if
it must come from "unwilling official
Page 456 U. S. 642
hands."
EPA v. Mink, 410 U.S. at
410 U. S. 80. It
scarcely needs to be repeated that Congress' ultimate objective in
requiring such disclosure was
"to ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to hold
the governors accountable to the governed."
NLRB v. Robbins Tire & Rubber Co., 437 U.
S. 214,
437 U. S. 242
(1978) (citations omitted). Clearly, the disclosure of the name
check summaries required by the plain language of Exemption 7
comports with this statutory objective, since it mandates the
release of documents that the District Court found to have been
compiled for political, not "law enforcement," purposes.
Unquestionably, of course, Congress' intent in enacting the FOIA
was not single-mindedly to require disclosure whatever the costs.
Congress realized that, under certain circumstances, the costs of
disclosure exceed the benefits. Congress weighed those costs and
benefits, and recorded the results of its deliberations in the
"clearly delineated statutory language," S.Rep. No. 813, 89th
Cong., 1st Sess., 3 (1965), of the FOIA's nine exclusive
exemptions. The Senate Committee described the legislative
balancing process:
"It is not an easy task to balance the opposing interests, but
it is not an impossible one, either. . . . Success lies in
providing a workable formula which encompasses, balances, and
protects all interests, yet places emphasis on the fullest possible
disclosure."
Ibid.
Once having completed the arduous and demanding task of
balancing interests, and having recorded the results in the nine
enumerated exemptions from the FOIA, Congress then attempted to
insulate its product from judicial tampering and to preserve the
emphasis on disclosure by admonishing that the "availability of
records to the public" is not limited, "except as
specifically stated." 5 U.S.C. § 552(c) (1976 ed., Supp.
IV) (emphasis added). The Court now presumes to suggest that the
balance as struck in Exemption 7 "makes little sense" "[i]n terms
of the statutory objectives."
Ante at
Page 456 U. S. 643
456 U. S. 628
(footnote omitted). The statutory objectives, however, point in
different directions, demanding a balance between the Act's primary
focus on disclosure and other, sometimes equally compelling,
interests. The particular balance struck by Congress and enshrined
in Exemption 7 may be open to attack as ill-advised, but, exactly
because it represents a compromise between competing policies, it
cannot be said to lead to results so "patently absurd" that a court
can only conclude that Congress did not mean what it said.
In short, if the Court hopes to support its result on the basis
that a straightforward interpretation of the statute "makes little
sense," the Court errs, unless, of course, the "sense" to which the
Court refers is to be found not in logic, but in the Court's view
of what makes "sense" as a matter of public policy.
II
To reach its result, the Court assumes that, through
inadvertence or inattention, Congress' pen slipped while amending
Exemption 7 in 1974. Proceeding on this basis, the Court helpfully
undertakes to rewrite the Exemption, substituting for the statutory
phrase "investigatory records compiled for law enforcement
purposes" something like "records containing investigatory
information originally gathered for law enforcement purposes."
As the Court is quick to point out, its new creation has
advantages. The Court notes that "[t]he reasons for an Exemption 7
exemption" might apply to "information in a law enforcement record
[that has been] recompiled in another document for a non-law
enforcement function."
Ante at
456 U. S. 630.
The Court then suggests that, without its redaction of Exemption 7,
no guarantee would exist that some other provision of the FOIA
would halt disclosure. For this reason, the Court candidly
concludes that
"[i]t is therefore critical that the 'compiled for law
enforcement' requirement be construed to avoid the release of
information that would produce . . . undesirable results."
Ibid. Evidently, the Court arrives at
Page 456 U. S. 644
this conclusion not because the language of Exemption 7 requires
it, not because the legislative history supports it, not because
the statute would have "absurd consequences" otherwise, but rather
because "the statesmanship of policymaking . . . wisely suggest[s]"
it. Frankfurter, 47 Colum.L.Rev. at 533.
It is not the function of this Court, however, to apply the
finishing touches needed to perfect legislation. Our job does not
extend beyond attempting to fathom what it is that Congress
produced, blemished as the Court may perceive that creation to be.
Our task is solely to give effect to the intentions, as best they
can be determined, of the Congress that enacted the legislation.
Absent compelling evidence requiring a contrary conclusion, the
best indication of Congress' intent is Congress' own language.
Therefore, I dissent.
[
Footnote 2/1]
Because the Government did not challenge in this Court or in the
Court of Appeals the finding of the District Court that the name
check summaries at issue had not been compiled for law enforcement
purposes, the Court properly assumes the validity of that finding.
The District Court explained its ruling as follows:
"The document at issue concerns information requested by and
transmitted to the Nixon White House concerning eleven individuals.
Each of these eleven individuals has been prominently associated
with liberal causes and/or has been outspoken in their opposition
to the war in Indochina that was being waged by this nation at that
time. . . ."
"The defendants contend that the White House 'name check'
requests qualify as records compiled for law enforcement purposes
because the White House has special security and appointment
functions. At no point in their pleadings do the defendants relate
these broad and general duties to the individuals about whom
information was requested from the FBI. Thus, there has been
absolutely no showing that these particular records were compiled
for law enforcement purposes. Accordingly, the defendants have
failed to meet their burden, and summary judgment will be granted
in favor of the plaintiff on this point."
App. to Pet. for Cert. 27a.
[
Footnote 2/2]
The Court rephrases the "sole question for decision" as
"whether information originally compiled for law enforcement
purposes loses its Exemption 7 protection if summarized in a new
document not created for law enforcement purposes."
Ante at
456 U. S. 623.
The question presented by this case, however, is simply whether the
contested documents are "investigatory records compiled for law
enforcement purposes" within the meaning of Exemption 7.
[
Footnote 2/3]
Strictly speaking, the Exemption is narrower than stated in
text, since the Act also provides that
"[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the
portions which are exempt,"
5 U.S.C. § 552(b). In effect, then, Exemption 7 shields only
those "reasonably segregable portion[s]" of "records" that are both
"investigatory" and "compiled for law enforcement purposes."
[
Footnote 2/4]
The Court claims "[n]o express answer" to the question presented
by the case "is provided by the statutory language,"
ante
at
456 U. S. 623.
Apparently, the Court's assertion is intended to state the Court's
conclusions that the language of the statute does not mean what it
says, and that, therefore, a straightforward reading of the statute
is "formalistic,"
ante at
456 U. S. 631.
The statutory language does provide an "express answer," though not
one to the Court's liking.
[
Footnote 2/5]
Courts frequently refer to "the oft-repeated caveat that FOIA
exemptions are to be narrowly construed,"
ante at
456 U. S. 630.
E.g., Founding Church of Scientology of Washington, D.C., Inc.
v. Bell, 195 U.S.App.D.C. 363, 367-368, 603 F.2d 945, 949-950
(1979) ("[t]he legislative history of the Act and the 1974
amendments to it support a narrow construction of the exemptions");
New England Medical Center Hospital v. NLRB, 548 F.2d 377,
384 (CA1 1976) ("
disclosure, not secrecy, is the dominant
objective of the Act,' and . . . exemptions are to be `narrowly
construed'") (citations omitted); Charlotte-Mecklenburg
Hospital Authority v. Perry, 571 F.2d 195, 200, n. 15 (CA4
1978) ("Exemptions in the FOIA are to be `narrowly construed,' with
all doubts resolved in `favoring disclosure'" (citations omitted);
Cox v. United States Dept. of Justice, 576 F.2d 1302, 1305
(CA8 1978) ("The exemptions provided by subsection (b) `must be
narrowly construed'" (citation omitted)).
The Act itself emphasizes that it "does not authorize
withholding of information or limit the availability of records to
the public,
except as specifically stated. . . ." 5 U.S.C.
§ 552(c) (1976 ed., Supp. IV) (emphasis added). Moreover, the
legislative histories of the Act and of the 1974 amendments dictate
a narrow construction of the exemptions to the FOIA.
See,
e.g., S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965) (the
FOIA was enacted "to establish a general philosophy of full agency
disclosure unless information is exempted under
clearly
delineated statutory language" (emphasis added)); S.Rep. No.
93-854, p. 6 (1974), reprinted in House Committee on Government
Operations and Senate Committee on the Judiciary, Freedom of
Information Act and Amendments of 1974 (Pub.L. 93-502), Source
Book, 94th Cong., 1st Sess., 158 (Joint Comm. Print 1975)
(hereafter cited as Source Book).
[
Footnote 2/6]
According to the Court, the phrase "investigatory records
compiled" might have been intended to mean something like
"investigatory information gathered." The Court, of course, cannot
claim that the ordinary, everyday meanings of the words "records"
and "compiled" are ambiguous. Instead, as JUSTICE BLACKMUN
suggests,
ante at
456 U. S. 632, "the Court has simply substituted the
word
information' for the word `records' in Exemption
7(C)."
Notably, the Court does not attempt to cite cases interpreting
the word "record" as used in the FOIA to refer to information apart
from the particular tangible forms in which that information is
recorded. In fact, this Court itself has said that the "[FOIA]
deals with '
agency records,' not information in the abstract."
Forsham v. Harris, 445 U. S. 169,
445 U. S. 185
(1980). Surely, for example, a complete summary in different words,
no matter how accurate, of all the information contained in an
agency record would not satisfy an FOIA request for that
record.
[
Footnote 2/7]
See, e.g., TVA v. Hill, 437 U.
S. 153,
437 U. S. 184,
n. 29 (1978) ("[w]hen confronted with a statute which is plain and
unambiguous on its face, we ordinarily do not look to legislative
history as a guide to its meaning") (BURGER, C.J.).
[
Footnote 2/8]
The English practice, by contrast, excludes external evidence
from the process of statutory construction. Under the classical
English approach,
"[i]t was permissible to consider what the law was before the
statute, what 'mischief' the statute was meant to remedy, and what
the statute actually said,"
but
"it was not permissible to refer to the debates in Parliament
for light on what the statute meant, nor to the changes which were
made in the original bill before it became an act."
T. Plucknett, A Concise History of the Common Law 335 (5th
ed.1956). This "wooden English doctrine" of excluding consideration
of legislative history has been rejected by this Court "since the
days of Marshall," as a "pernicious oversimplification,"
United
States v. Monia, 317 U. S. 424,
317 U. S.
431-432 (1943) (Frankfurter, J., dissenting).
[
Footnote 2/9]
The Court does suggest, in effect, that Congress loosely drafted
the statute, and intended to refer to "information" when it wrote
"records." In support of its position, the Court cites instances in
which a few Members of Congress, in the heat of floor discussions
and debates, seemed to use the terms "documents," "records,"
"matters," and "information" rather freely.
Ante at
456 U. S.
625-626, and n. 9. Because these discussions did not
focus on the distinction created by the Court's construction of
Exemption 7, they hardly can be considered to be the "clearly
expressed legislative intention to the contrary,"
Bread
Political Action Committee v. FEC, 455 U.
S. 577,
455 U. S. 580
(1982), required to overcome the presumption in favor of the plain
language of a statute.
[
Footnote 2/10]
To see how little support those citations provide for the
Court's position, it is only necessary to examine them. First, as
noted in
456
U.S. 615fn2/9|>n. 9,
supra, the Court cites the
legislative history to show that some Members of Congress, in the
heat of debate over the wisdom of the Exemption, used terms such as
"documents," "records," "matters," and "information"
interchangeably.
Ante at
456 U. S.
625-626, and n. 9. Second, the Court quotes a
Congressman's statement that the Exemption requires the Government
to specify some harm before the Government can successfully resist
disclosure.
Ante at
456 U. S. 627.
Third, the Court cites the legislative history to show that
Exemption 7 was enacted to override decisions of the Court of
Appeals for the District of Columbia Circuit, which had expansively
interpreted the Exemption's predecessor.
Ante at
456 U. S. 627,
and n. 11. And finally, the Court cites correspondence between
President Ford and Members of Congress supporting the view that the
protection of Exemption 6 does not fully overlap the protection of
Exemption 7.
Ante at
456 U. S.
629-630, n. 13. In short, none of these citations
directly supports the Court's result.
The legislative history of the 1974 amendment to Exemption 7 is
summarized in
NLRB v. Robbins Tire & Rubber Co.,
437 U. S. 214,
437 U. S.
226-234 (1978).
[
Footnote 2/11]
Significantly, however, the legislative history of the 1974
amendment shows that Congress was aware of specific instances of
alleged misconduct by the FBI and hoped the more liberal disclosure
mandated by the amendment would discourage such incidents.
See,
e.g., 120 Cong.Rec. 17039 (1974), Source Book 348 (remarks of
Sen. Weicker); 120 Cong.Rec. 36866-36867 (1974), Source Book
440-441 (remarks of Sen. Kennedy); 120 Cong.Rec. 36872 (1974),
Source Book 453 (remarks of Sen. Hart).
[
Footnote 2/12]
Moreover, the Court is too quick to find Congress' distinction
to "mak[e] little sense." In fact, whatever the merits of the line
Congress adopted, it is comprehensible.
To understand why, one need realize only that a summary often
provides as much information about the individual who summarizes as
it does about the material summarized. The summaries of the
opinions of this Court carried in the media, for example,
frequently provide a perspective not only on the work of the Court,
but also on the perceptions and judgment of the reporters and their
editors.
Photocopies, on the other hand, indicate nothing about the
purposes and perceptions of the persons responsible for their
creation. Any significance a photocopy may have derives exclusively
from its content, and not from the process of its creation. Indeed,
the Government usually satisfies an FOIA request by releasing a
photocopy while retaining the original. A photocopy, moreover,
inevitably discloses the entire original that it duplicates, while
a summary discloses its sources only in part.
Thus, it is not true that the distinction Congress drew "makes
little sense." A rational Congress could have thought that a
summary is likely to provide sufficient insight into the purposes
of its creators and requesters to justify its disclosure under the
FOIA, if it was "compiled" for other than "law enforcement
purposes." The same Congress, furthermore, could have concluded
that a photocopy, which can never convey anything other than the
entire contents of the original document, should not be disclosed
if the original is exempt from disclosure.
Of course, there is no evidence that Congress thought about this
distinction, and Congress plainly could not have considered the
distinction as applied to the facts of the present case. The point,
however, is only that the line drawn by the language of the statute
does not lead to patently absurd consequences. Whether that
distinction is well advised as a matter of sound policy is, of
course, entirely another matter -- and not for this Court.