Environmental Protection Agency v. Mink

410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119, 1973 U.S. LEXIS 136, 1 Media L. Rep. (BNA) 2448, 3 Envtl. L. Rep. (Envtl. Law Inst.) 20057, 4 ERC (BNA) 1913

• Court: Supreme Court of the United States
• Decided: January 22, 1973
• Docket: 71-909
• Status: Published

Opinions

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.

I

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.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.² In support of the motion, petitioners filed an affidavit of John N. Irwin II, the Under Secretary 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 ¶[ 5 of the affidavit, Mr. Irwin stated that pursuant to “the foregoing directions from the President,” the Under Secretaries Committee had prepared and transmitted to the President a report on the proposed underground nuclear test known as “Cannikin,” scheduled to take place at Amchitka Island, Alaska. The report was said to have consisted of a covering memorandum from Mr. Irwin, the report of the Under Secretaries Committee, five documents attached to that report, and three additional letters separately sent to Mr. Irwin.³ Of the total of 10 documents, one, an Environmental Impact Statement prepared by AEC, was publicly available and was not in dispute. Each of the other nine was claimed in the Irwin affidavit to have been

“prepared and used solely for transmittal to the President as advice and recommendations and set forth the views and opinions of the individuals and agencies preparing the documents so that the President might be fully apprised of varying viewpoints and have been used for no other purpose.”

In addition, at least eight (by now reduced to six) of the nine remaining documents were said to involve highly sensitive matter vital to the national defense and foreign policy and were described as having been classified Top Secret or Secret pursuant to Executive Order 10501.⁴

On the strength of this showing by petitioners, the District Court granted summary judgment in their favor on the ground that each of the nine documents sought was exempted from compelled disclosure by §§ (b)(1) and (b)(5) of the Act. The Court of Appeals reversed, concluding that subsection (b)(1) of the Act permits the withholding of only the secret portions of those documents bearing a separate classification under Executive Order 10501: “If the nonsecret components [of such documents] are separable from the secret remainder and may be read separately without distortion of meaning, they too should be disclosed.” 150 U. S. App. D. C. 233, 237, 464 F. 2d 742, 746. The court instructed the District Judge to examine the classified documents “looking toward their possible separation for purposes of disclosure or nondisclosure.” Ibid.

In addition, the Court of Appeals concluded that all nine contested documents fell within subsection (b) (5) of the Act, but construed that exemption as shielding only the “decisional processes” reflected in internal Government memoranda, not “factual information” unless that information is “inextricably intertwined with policy-making processes.” The court then ordered the District Judge to examine the documents in camera (including, presumably, any “nonsecret components” of the six classified documents) to determine if “factual data” could be separated out and disclosed “without impinging on the policymaking decisional processes intended to be protected by this exemption.” We granted certiorari, 405 U. S. 974, and now reverse the judgment of the Court of Appeals.

II

The Freedom of Information Act, 5 U. S. C. § 552,⁶ is a revision of § 3, the public disclosure section, of the Administrative Procedure Act, 5 U. S. C. § 1002 (1964 ed.). Section 3 was generally recognized as falling far short of its disclosure goals and came to be looked upon more as a withholding statute than a disclosure statute. See S. Rep. No. 813, 89th Cong., 1st Sess., 5 (1965) (hereinafter S. Rep. No. 813); H. R. Rep. No. 1497, 89th Cong., 2d Sess., 5-6 (1966) (hereinafter H. R. Rep. No. 1497). The section was plagued with vague phrases, such as that exempting from disclosure “any function of the United States requiring secrecy in the public interest.” Moreover, even “matters of official record” were only to be made available to “persons properly and directly concerned” with the information. And the section provided no remedy for wrongful withholding of information. The provisions of the Freedom of Information Act stand in sharp relief against those of § 3. The Act eliminates the “properly and directly concerned” test of access, stating repeatedly that official information shall be made available “to the public,” “for public inspection.” Subsection (b) of the Act creates nine exemptions from compelled disclosures. These exemptions are explicitly made exclusive, 5 U. S. C. § 552 (c), and are plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed. Aggrieved citizens are given a speedy remedy in district courts, where “the court shall determine the matter de novo and the burden is on the agency to sustain its action.” 5 U. S. C. §552 (a)(3). Noncompliance with court orders may be punished by contempt. Ibid.

Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands. Subsection (b) is part of this scheme and represents the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses. As the Senate Committee explained, it was 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 responsible disclosure.” S. Rep. No. 813, p. 3.⁶

It is in the context of the Act’s attempt to provide a “workable formula” that “balances, and protects all interests,” that the conflicting claims over the documents in this case must be considered.

A

Subsection (b)(1) of the Act exempts from forced disclosure matters “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.” According to the Irwin affidavit, the six documents for which Exemption 1 is now claimed were all duly classified Top Secret or Secret, pursuant to Executive Order 10501, 3 CFR 280 (Jan. 1, 1970). That order was promulgated under the authority of the President in 1953, 18 Fed. Reg. 7049, and, since that time, has served as the basis for the classification by the Executive Branch of information “which requires protection in the interests of national defense.” ⁷ We do not believe that Exemption 1 permits compelled disclosure of documents, such as the six here that were classified pursuant to this Executive Order. Nor does the Exemption permit in camera inspection of such documents to sift out so-called “nonsecret components.” Obviously, this test was not the only alternative available. But Congress chose to follow the Executive’s determination in these matters and that choice must be honored.

The language of Exemption 1 was chosen with care. According to the Senate Committee, “[t]he change of standard from ‘in the public interest’ is made both to delimit more narrowly the exception and to give it a more precise definition. The phrase ‘public interest’ in section 3 (a) of the Administrative Procedure Act has been subject to conflicting interpretations, often colored by personal prejudices and predilections. It admits of no clear delineations.” S. Rep. No. 813, p. 8. The House Committee similarly pointed out that Exemption 1 “both limits the present vague phrase, ‘in the public interest,’ and gives the area of necessary secrecy a more precise definition.” H. R. Rep. No. 1497, p. 9. Manifestly, Exemption 1 was intended to dispel uncertainty with respect to public access to material affecting “national defense or foreign policy.” Rather than some vague standard, the test was to be simply whether the President has determined by Executive Order that particular documents are to be kept secret. The language of the Act itself is sufficiently clear in this respect, but the legislative history disposes of any possible argument that Congress intended the Freedom of Information Act to subject executive security classifications to judicial review at the insistence of anyone who might seek to question them. Thus, the House Report stated with respect to subsection (b)(1) that “citizens both in and out of Government can agree to restrictions on categories of information which the President has determined must be kept secret to protect the national defense or to advance foreign policy, such as matters classified pursuant to Executive Order 10501.” H. R. Rep. No. 1497, pp. 9-10.⁸ Similarly, Representative Moss, Chairman of the House Subcommittee that considered the bill, stated that the exemption “was intended to specifically recognize that Executive order [No. 10501]” and was drafted “in conformity with that Executive order.” Hearings on Federal Public Records Law before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 52, 55 (1965) (hereinafter 1965 House Hearings). And a member of the Committee, Representative Gallagher, stated that the legislation and the Committee Report make it “crystal clear that the bill in no way affects categories of information which the President . . . has determined must be classified to protect the national defense or to advance foreign policy. These areas of information most generally are classified under Executive Order No. 10501.” 112 Cong. Rec. 13659.

These same sources make untenable the argument that classification of material under Executive Order 10501 is somehow insufficient for Exemption 1 purposes, or that the exemption contemplates the issuance of orders, under some other authority, for each document the Executive may want protected from disclosure under the Act. Congress could certainly have provided that the Executive Branch adopt new procedures or it could have established its own procedures — subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering. Cf. United States v. Reynolds, 345 U. S. 1 (1953). But Exemption 1 does neither. It states with the utmost directness that the Act exempts matters “specifically required by Executive order to be kept secret.” Congress was well aware of the Order and obviously accepted determinations pursuant to that Order as qualifying for exempt status under § (b)(1). In this context it is patently unrealistic to argue that the “Order has nothing to do with the first exemption.” ⁹

What has been said thus far makes wholly untenable any claim that the Act intended to subject the soundness of executive security classifications to judicial review at the insistence of any objecting citizen. It also negates the proposition that Exemption 1 authorizes or permits in camera inspection of a contested document bearing a single classification so that the court may separate the secret from the supposedly nonsecret and order disclosure of the latter. The Court of Appeals was thus in error. The Irwin affidavit stated that each of the six documents for which Exemption 1 is now claimed “are and have been classified” Top Secret and Secret “pursuant to Executive Order No. 10501” and as involving “highly sensitive matter that is vital to our national defense and foreign policy.” The fact of those classifications and the documents’ characterizations have never been disputed by respondents. Accordingly, upon such a showing and in such circumstances, petitioners had met their burden of demonstrating that the documents were entitled to protection under Exemption 1, and the duty of the District Court under § 552 (a) (3) was therefore at an end.¹⁰

B

Disclosure of the three documents conceded to be “unclassified” is resisted solely on the basis of subsection (b)(5) of the Act (hereafter Exemption 5).¹¹ That Exemption was also invoked, alternatively, to support withholding the six documents for which Exemption 1 was claimed. It is beyond question that the Irwin affidavit, standing alone, is sufficient to establish that all of the documents involved in this litigation are “inter-agency or intra-agency” memoranda or “letters” that were used in the decisionmaking processes of the Executive Branch. By its terms, however, Exemption 5 creates an exemption for such documents only insofar as they ‘“would not be available by law to a party ... in litigation with the agency.” This language clearly contemplates that the public is entitled to all such memoranda or letters that a private party could discover in litigation with the agency. Drawing such a line between what may be withheld and what must be disclosed is not without difficulties. In many important respects, the rules governing discovery in such litigation have remained uncertain from the very beginnings of the Republic.¹² Moreover, at best, the discovery rules can only be applied under Exemption 5 by way of rough analogies. For example, we do not know whether the Government is to be treated as though it were a prosecutor, a civil plaintiff, or a defendant.¹³ Nor does the Act, by its terms, permit inquiry into particularized needs of the individual seeking the information, although such an inquiry would ordinarily be made of a private litigant. Still, the legislative history of Exemption 5 demonstrates that Congress intended to incorporate generally the recognized rule that “confidential intra-agency advisory opinions . . . are privileged from inspection.” Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct. , 157 F. Supp. 939, 946 (1958) (Reed, J.). As Mr. Justice Reed there stated:

“There is a public policy involved in this claim of privilege for this advisory opinion — the policy of open, frank discussion between subordinate and chief concerning administrative action.” Id., at 48, 157 F. Supp., at 946.

The importance of this underlying policy was echoed again and again during legislative analysis and discussions of Exemption 5:

“It was pointed out in the comments of many of the agencies that it would be impossible to have any frank discussion of legal or policy matters in writing if all such writings were to be subjected to public scrutiny. It was argued, and with merit, that efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to ‘operate in a fishbowl/ The committee is convinced of the merits of this general proposition, but it has attempted to delimit the exception as narrowly as consistent with efficient Government operation.” S. Rep. No. 813, p. 9.

See also H. R. Rep. No. 1497, p. 10. But the privilege that has been held to attach to intragovernmental memo-randa clearly has finite limits, even in civil litigation. In each case, the question was whether production of the contested document would be “injurious to the consultative functions of government that the privilege of nondisclosure protects.” Kaiser Aluminum & Chemical Corp., supra., at 49, 157 F. Supp., at 946. Thus, in the absence of a claim that disclosure would jeopardize state secrets, see United States v. Reynolds, 345 U. S. 1 (1953), memoranda consisting only of compiled factual materia] or purely factual material contained in deliberative memo-randa and severable from its context would generally be available for discovery by private parties in litigation with the Government.¹⁴ Moreover, in applying the privilege, courts often were required to examine the disputed documents in camera, in order to determine which should be turned over or withheld.¹⁵ We must assume, therefore, that Congress legislated against the backdrop of this case law, particularly since it expressly intended “to delimit the exception [5] as narrowly as consistent with efficient Government operation.” S. Rep. No. 813, p. 9. See H. R. Rep. No. 1497, p. 10. Virtually all of the courts that have thus far applied Exemption 5 have recognized that it requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other.¹⁶

Nothing in the legislative history of Exemption 5 is contrary to such a construction. When the bill that ultimately became the Freedom of Information Act, S. 1160, was introduced in the 89th Congress, it contained an exemption that excluded:

“inter-agency or intra-agency memorandums or letters dealing solely with matters of law or policy.” ¹⁷

This formulation was designed to permit “[a] 11 factual material in Government records ... to be made available to the public.” S. Rep. No. 1219, 88th Cong., 2d Sess., 7 (1964). (Emphasis in original.) The formulation was severely criticized, however, on the ground that it would permit compelled disclosure of an otherwise private document simply because the document did not deal “solely” with legal or policy matters. Documents dealing with mixed questions of fact, law, and policy would inevitably, under the proposed exemption, become available to the public.¹⁸ As a result of this criticism, Exemption 5 was changed to substantially its present form. But plainly, the change cannot be read as suggesting that all factual material was to be rendered exempt from compelled disclosure. Congress sensibly discarded a wooden exemption that could have meant disclosure of manifestly private and confidential policy recommendations simply because the document containing them also happened to contain factual data. That decision should not be taken, however, to embrace an equally wooden exemption permitting the withholding of factual material otherwise available on discovery merely because it was placed in a memorandum with matters of law, policy, or opinion. It appears to us that Exemption 5 contemplates that the public’s access to internal memo-randa will be governed by the same flexible, commonsense approach that has long governed private parties’ discovery of such documents involved in litigation with Government agencies. And, as noted, that approach extended and continues to extend to the discovery of purely factual material appearing in those documents in a form that is severable without compromising the private remainder of the documents.

Petitioners further argue that, although in camera inspection and disclosure of “low-level, routine, factual reports” ¹⁹ may be contemplated by Exemption 5, that type of document is not involved in this case. Rather, it is argued, the documents here were submitted directly to the President by top-level Government officials, involve matters of major significance, and contain, by their very nature, a blending of factual presentations and policy recommendations that are necessarily “inextricably intertwined with policymaking processes.” 150 U. S. App. D. C., at 237, 464 F. 2d, at 746. For these reasons, the petitioners object both to disclosure of any portions of the documents and to in camera inspection by the District Court.

To some extent, this argument was answered by the Court of Appeals, for its remand expressly directed the District Judge to disclose only such factual material that is not “intertwined with policymaking processes” and that may safely be disclosed “without impinging on the policymaking decisional processes intended to be protected by this exemption.” We have no reason to believe that, if petitioners’ characterization of the documents is accurate, the District Judge would go beyond the limits of the remand and in any way compromise the confidentiality of deliberative information that is entitled to protection under Exemption 5.

We believe, however, that the remand now ordered by the Court of Appeals is unnecessarily rigid. The Freedom of Information Act may be invoked by any member of “the public” — without a showing of need— to compel disclosure of confidential Government documents. The unmistakable implication of the decision below is that any member of the public invoking the Act may require that otherwise confidential documents be brought forward and placed before the District Court for in camera inspection — no matter how little, if any, purely factual material may actually be contained therein. Exemption 5 mandates no such result. As was said in Kaiser Aluminum & Chemical Corp., 141 Ct. Cl., at 50, 157 F. Supp., at 947: “It seems . . . obvious that the very purpose of the privilege, the encouragement of open expression of opinion as to governmental policy is somewhat impaired by a requirement to submit the evidence even [in camera].” Plainly, in some situations, in camera inspection will be necessary and appropriate. But it need not be automatic. An agency should be given the opportunity, by means of detailed affidavits or oral testimony, to establish to the satisfaction of the District Court that the documents sought fall clearly beyond the range of material that would be available to a private party in litigation with the agency. The burden is, of course, on the agency resisting disclosure, 5 U. S. C. § 552 (a)(3), and if it fails to meet its burden without in camera inspection, the District Court may order such inspection. But the agency may demonstrate, by surrounding circumstances, that particular documents are purely advisory and contain no separable, factual information. A representative document of those sought may be selected for in camera inspection. And, of course, the agency may itself disclose the factual portions of the contested documents and attempt to show, again by circumstances, that the excised portions constitute the barebones of protected matter. In short, in camera inspection of all documents is not a necessary or inevitable tool in every case. Others are available. Cf. United States v. Reynolds, 345 U. S. 1 (1953). In the present case, the petitioners proceeded on the theory that all of the nine documents were exempt from disclosure in their entirety under Exemption 5 by virtue of their use in the decisionmaking process. On remand, petitioners are entitled to attempt to demonstrate the propriety of withholding any documents, or portions thereof, by means short of submitting them for in camera inspection.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Rehnquist took no part in the consideration or decision of this case.

1 A separate action was brought to enjoin the test itself. Committee for Nuclear Responsibility v. Seaborg (DC, Civ. Action No. 1346-71). After adverse decisions below, plaintiffs in that case applied for an injunction in this Court. On November 6, 1971, we denied the application, Committee for Nuclear Responsibility v. Schlesinger, 404 U. S. 917, and the test was conducted that same day.

It should be noted that in the District Court respondents stated that they “have exhausted their administrative remedies [and] . . . have complied with all applicable regulations.” Petitioners did not contest those assertions.

2 Petitioners also moved for dismissal of the suit insofar as respondents sought disclosure of the documents in their official capacities as Members of Congress. The District Court granted this motion, but the Court of Appeals did not reach the issue. Accordingly, the issue is not before this Court.

3 According to the Irwin affidavit, the report contained the following documents:

A. A covering memorandum from Mr. Irwin to the President, dated July 17, 1971. This memorandum is classified Top Secret pursuant to Executive Order 10501.

B. The Report of the Under Secretaries Committee. This report was also classified Top Secret. Attached to the report were additional documents:

1. A letter, classified Secret, from the Chairman of the Atomic Energy Commission (AEC) to Mr. Irwin.

2. A report, classified Top Secret, from the Defense Program Review Committee, of which Dr. Henry Kissinger was the Chairman.

3. The Environmental Impact Statement on the proposed Cannikin test, prepared by the AEC in 1971, pursuant to § 102 (C) of the National Environmental Policy Act of 1969, 83 Stat. 853, 42 U. S. C. § 4332 (C). This document had always been “publicly available” and a copy was attached to the Irwin affidavit.

4. A transcript of an oral briefing given by the AEC to the Committee. This document was classified Secret.

5. A memorandum from the Council on Environmental Quality to Mr. Irwin. This memorandum was separately unclassified.

C. In addition to the covering memorandum and the Committee’s report (with attached documents), were three letters that had been transmitted to Mr. Irwin:

1. A letter from Mr. William Ruckelshaus, for the Environmental Protection Agency. This letter was classified Top Secret, but has now been declassified.

2. A letter from Mr. Russell Train, for the Council on Environmental Quality. Although the Irwin affidavit states that this letter was classified Top Secret, petitioners concede that it was so classified “only because it was to be attached to the Undersecretary’s Report.” Brief for Petitioners 6 n. 5.

3. A letter of Dr. Edward E. David, Jr., for the Office of Science and Technology. This letter is classified Top Secret.

4 These eight documents were also described as having been classified as “Restricted Data . . . pursuant to the Atomic Energy Act of 1954, as amended. (42 U. S. C. [§§ 2014 (y)], 2161 and 2162.)” Petitioners have not asserted that these provisions, standing alone, would justify withholding the documents in this case. But see 5 U. S. C. §552 (b)(3), relating to matters “specifically exempted from disclosure by statute.”

5 The Act was passed in 1966, 80 Stat. 383, and codified in its present form in 1967. 81 Stat. 54.

6 The Report states (ibid.):

“It is the purpose of the present bill ... to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language ....

“At the same time that a broad philosophy of 'freedom of information’ is enaoted into law, it is necessary to protect certain equally important rights of privacy with respect to certain information in Government files, such as medical and personnel records. It is also 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.

“It is not an easy task to balance the opposing interests, but it is not an impossible one either. It is not necessary to conclude that to protect one of the interests, the other must, of necessity, either be abrogated or substantially subordinated. Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.”

See also H. R. Rep. No. 1497, p. 6.

7 Executive Order 10501 has been superseded, as of June 1, 1972, by Executive Order 11652, 37 Fed. Reg. 5209, which similarly provides for the classification of material "in the interest of the national defense or foreign relations.”

Portions of two documents for which Exemption 1 is claimed were ordered disclosed in connection with the action brought to enjoin the test (see n. 1, supra). Petitioners seek no relief with respect to any matters already disclosed.

8 The House Report, it is true, indicates that the President must determine that the exempted matter be kept secret. Clearly, however, Executive Order 10501 is based on presidential authority and specifically delegates that authority to “the departments, agencies, and other units of the executive branch as hereinafter specified.” 3 CFR § 281 (Jan. 1, 1970) (emphasis added). One may disagree with the scope of the delegation or with how the delegated authority is exercised in particular cases, but the authority itself nevertheless remains the President’s and it is his judgment that the first exemption was designed to respect.

9 Brief for Respondents 18. Respondents note that the preamble of the new Executive Order 11652 (see n. 7, su-pra), specifies that material classified pursuant to its provisions “is expressly exempted from public disclosure by Section 552 (b) (1) of Title 5, United States Code.” Executive Order 10501 has no comparable recital, but only the sheerest ritualism would distinguish the effect of the two orders on any such basis. Indeed, respondents’ apparent acceptance of the new order as a justifiable ground for resisting disclosure under Exemption 1 points to the absurdity of maintaining that Executive Order 10501 is irrelevant to the Act.

10 This conclusion is not undermined by the new Executive Order 11652, which calls for the separation of documents into classified and unclassified portions, where practicable. 37 Fed. Reg. 5212. On the contrary, that new order provides that the separating be done by the Executive, not the Judiciary, and, like its predecessor, permits declassification of material only in accordance with its procedures. More importantly, the very existence of the new order demonstrates that the Executive exercises a continuing responsibility for determining the need for secrecy in matters that affect national defense and foreign policy. Exemption 1 recognizes that responsibility by leaving to the Executive, under such orders as shall be developed, the decision of what may be disclosed and what must be kept secret.

11 Title 5 U. S. C. § 552 reads in part as follows:

“(a) Each agency shall make available to the public information as follows:

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

“(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.”

The three documents are: the CEQ memorandum to Mr. Irwin, the Train letter, and the Ruckelshaus letter, which has now been declassified.

12 See generally 4 J. Moore, Federal Practice ¶ 26.61 (1972) and authorities collected (id.., at ¶ 26.61 [1] n. 2) (hereinafter Moore); 8 J. Wigmore, Evidence §§2378, 2379 (McNaughton rev. 1961) (hereinafter Wigmore).

There were early disputes over the issue of Executive privilege. See Chief Justice Marshall's decisions in the trial of United States v. Burr, 25 F. Cas. 30 (No. 14,692d) and 25 F. Cas. 187, 191-192 (No. 14,694) (CCD Va. 1807), discussed in 8 Wigmore §2371, pp. 739-741 (3d ed. 1940) and 4 Moore ¶ 26.61 [6.-4], See also Wigmore § 2378, p. 805 and n. 21.

13 Different rules have been held to apply in each situation. See, e. g., United States v. Andolschek, 142 F. 2d 503, 506 (CA2 1944) (L. Hand, J.) (United States as prosecutor); Bank Line, Ltd. v. United States, 76 F. Supp. 801 (SDNY 1948) (United States as defendant). Moreover, in actions under the Freedom of Information Act, courts are not given the option to impose alternative sanctions — short of compelled disclosure — such as striking a particular defense or dismissing the Government’s action.

14 See, e. g., Machin v. Zuckert, 114 U. S. App. D. C. 335, 316 F. 2d 336, cert. denied, 375 U. S. 896 (1963) (Air Force Aircraft Accident Investigation Report); Boeing Airplane Co. v. Coggeshall, 108 U. S. App. D. C. 106, 112-113, 280 F. 2d 654, 660-661 (1960) (Renegotiation Board documents); Olson Rug Co. v. NLRB, 291 F. 2d 655, 662 (CA7 1961) (no claim that NLRB documents are exclusively policy recommendations”); Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F. R. D. 318, 327 (DC 1966), aff’d, 128 U. S. App. D. C. 10, 384 F. 2d 979, cert. denied, 389 U. S. 952 (1967) (discovery denied because documents “wholly of opinions, recommendations and deliberations”); McFadden v. Avco Corp., 278 F. Supp. 57, 59-60 (MD Ala. 1967), and cases cited therein.

In United States v. Cotton Valley Operators Comm., 9 F. R. D. 719, 720 (WD La. 1949), aff’d by equally divided court, 339 U. S. 940 (1950), the United States offered to file “an abstract of factual information” contained in the contested documents (FBI reports).

15 See, e. g., Machin v. Zuckert, supra, at 340, 316 F. 2d, at 341 (private tort action; discovery of Air Force Aircraft Accident Investigation Report); Boeing Airplane Co. v. Coggeshall, supra, at 114, 280 F. 2d, at 662 (excess profits tax redetermination); Olson Rug Co. v. NLRB, supra, at 662 (discovery for use in defense against contempt proceedings); O’Keefe v. Boeing Co., 38 F. R. D. 329, 336 (SDNY 1965) (private tort action; Air Force Investigation Reports) ; Rosee v. Board of Trade, 36 F. R. D. 684, 687-688 (ND Ill. 1965); United States v. Cotton Volley Operators Comm., supra (civil antitrust suit). Cf. United States v. Procter & Gamble Co., 25 F. R. D. 485, 492 (NJ 1960) (criminal antitrust prosecution). See Wigmore § 2379, p. 812.

In Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct. Cl. 38, 157 F. Supp. 939 (1958), where in camera inspection of a document was refused because of plaintiff’s failure to make a definite showing of necessity, id., at 50, 157 F. Supp., at 947, the “objective facts” contained in the disputed document were “otherwise available.” Id., at 48-49, 157 F. Supp., at 946.

16 See, e. g., Soucie v. David, 145 U. S. App. D. C. 144, 448 F. 2d 1067 (1971); Grumman Aircraft Eng. Corp. v. Renegotiation Bd., 138 U. S. App. D. C. 147, 151, 425 F. 2d 578, 582 (1970); Bristol-Myers Co. v. FTC, 138 U. S. App. D. C. 22, 424 F. 2d 935 (1970) ; International Paper Co. v. FPC, 438 F. 2d 1349, 1358-1359 (CA2), cert. denied, 404 U. S. 827 (1971); General Services Admin. v. Benson, 415 F. 2d 878 (CA9 1969), aff’g 289 F. Supp. 590 (WD Wash. 1968); Long Island R. Co. v. United States, 318 F. Supp. 490, 499 n. 9 (EDNY 1970); Consumers Union v. Veterans Admin., 301 F. Supp. 796 (SDNY 1969), appeal dismissed as moot, 436 F. 2d 1363 (CA2 1971); Olsen v. Camp, 328 F. Supp. 728, 731 (ED Mich. 1970); Reliable Transfer Co. v. United States, 53 F. R. D. 24 (EDNY 1971).

The proposed Federal Rules of Evidence appear to recognize this construction of Exemption 5. Proposed Rule 509 (a) (2) (A) defines “official information” to include “intragovernmental opinions or recommendations submitted for consideration in the performance of decisional or policymaking functions.” Rule 509 (c) further provides that “ [i]n the case of privilege claimed for official information the court may require examination in camera of the information itself.”

17 Hearings on S. 1160, S. 1336, S. 1758, and S. 1879 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 7 (1965) (hereinafter 1965 Senate Hearings). This exemption itself had been broadened during its course through the Senate in the 88th Congress. The exemption originally applied only to internal memoranda "relating to the consideration and disposition of adjudicatory and rulemaking matters.” Section 3 (c) of S. 1666, 88th Cong., 2d Sess. (1964), introduced in 110 Cong. Rec. 17086. That early formulation came under attack for not sufficiently protecting material dealing with general policy matters not directly related to adjudication or rulemaking. See Hearings on S. 1666 and S. 1663 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 88th Cong., 1st Sess., 202-203. 247 (1963).

18 See 1965 Senate Hearings 36, 94-95, 112-113, 205, 236-237, 244, 366-367, 382-383, 402-403, 406-407, 417, 437, 445-446, 450, 490. See 1965 House Hearings 27-28, 49, 208, 220, 223-224, 229-230, 245-246, 255-257. Examples of these many statements are: Federal Aviation Administration (1965 Senate Hearings 446):

“Few records would be entirely devoid of factual data, thus leaving papers on law and policy relatively unprotected. Staff working papers and reports prepared for use within the agency of the executive branch would not be protected by the proposed exemptions.”

Department of Commerce (1965 Senate Hearings 406):

“Under this provision, internal memorandums dealing with mixed questions of fact, law and ‘policy could well become public information.” (Emphasis in original.)

19 Tr. of Oral Arg. 23.