The Freedom of Information Act and Pretrial Discovery

• Author: By Major Wilsie H. Adams, Jr.
• Pages: 01

This article discusses the 1066 amendments to 5 U.S.C. 1002, allowing greater access to government agency TECor& end authoritiizg federal courts to enjoin agencies from unreasonably withholding such records. Procedare under this Freedom of Information Act, as amended, is compared with discovery proceedings under the Federal Rules of Civil Procedure, including the factors upon which Q sound choice between the two m y be made by a litigant. The author cmtcl%d,es that the new Act can be a useful discovery tool, provided that the "exemptiow" are not interpreted so as to continue the denial of needed information; and he suggests that a new all-encompassing discovery statute be emcted independent of any larger QCt.

1. INTRODUCTION

   One of the most significant aspects of the Freedom of Information Act' is the creation of a judicial remedy for the wrongful withholding of Government information from the public. Subsection (c) of the Act provides:

   Upon complaint, the district court of the Uniwd States in the dintrict in which the complainant resides, OT has his p~ineipal place of business, or in which the agency records are situated ahail have jurisdiction to enjm the ageney from the withholding of agency records and to order the production of any agency recorda improperly withheld from the complainant.

   This grant of power to the courts adds a new judicial routethrough which to obtain information. The original route is "pre*This article was adapted from a thesis presented to The Judge Advoeate General's School, U.S. Army, Charlortesuilie, Virginia, while the author 9.83 a member of the Sixteenth Advanced Course. The Opinions and eonelwioni Dresented hmein are those of the author and do not neees~anl~ remesent the

   ;iews of The Judge Advocate General's Sehwl or any athe; goiernmental agency.

   **JAGC, U.S. Army; Instructor, Procurement Law Dinsion, The Judge Advocate General's School, U.S. Army; B.S., 1960, United Stares Military Academy; J.D., 1966, Georgetown University Law Center; admitted to prae-tice before the United States Dirtnet Court for the Diarrift of Columbia and the United States Court of Military Appeals.

   '80 Stat. 258 (1966), codified by 81 Stat. 64 (19671, 6 U.S.C. 5 652

   [hereafter referred to 88 the Aer]. The Act, &1 originally enacted, le set aut 8s an appendix to this paper. All qvotations within this paper are from 80 Stat. 260 (1966) for ease of reference to the legislative history.

   A00 8lliB 1

   trial discovery" under the Federal Rules of Civil Procedure,? but that i8 available only to parties who are actually in litigation. Were a party able to reach the same destination at the same time with either, the difference between the two routes would be insignificant. However, auch is not the case; thus it is advantageous to examine the features of each route and to identify the factors to be considered in selecting a route.

   11. BACKGROUSD OF THE FREEDOM

   OF INFORMATION ACT

   In order to understand the judicial proceedings provided by the Act it is necessary to examine the background of the Act.' This law is not the first attempt by Congress to provide comprehensive lepielation in the area of public access to Government information. This Act is basically an amendment to the "Public Information" section of the Administrative Procedure Act.' While intended to make records available to the public, the broad lan-guage of the old statute was used by the executive agencies as authority for withholding information from the public

   '28 U.S.C. 40 1-2710 (1964).

   'It is not intended here to provide en exhau8tive study of the legislative history of the Act. This has been done I" ArTORNCI GeaERAL HEMoR*rour ox THE PuBLlc I~FORMATLOS SECTLOX OF THE ADMIWISTRAIIW PROCEDURE ACTi I Q S i ) [hereafter cited 81 ATT'I GEN. MEMO] and in Davis, Thc I n i a m tian Act' A Preliminary Anelysia. 34 U. CHI. I. RFY. 761 (1967).

   ''Except to the extent that there is involved (1) any function of the United States requirmg secrecy ~n the public interest or (2) any matter relating aalely to the internal management of an agency- (a) Every agency shall separately rrate and currently publish in th% Federal Register (1) deacriptioni a i Its central and field organnation includrng delegations by the agency of final authority and the established places at which, and methods whereby, the publie may secure information or make submittals 01 requests, (2) itaiemenri of the general eour~e and method by which its functions are channeled and determined. including the nature and requirementa of all formal or informal procedures available as well 8s forms and instruetima as to the ieope and contents of all papers, reports, or examinations. and (3) substantive ruies adapted 8s avthorlzed by IPw and statements of general policy or interpietarions formulated and adopted by the agency for the zuidanee of the publie, but not rules addressed to and served umn named ~erions in aceordance wth law. KO emo on shall in any

   ' 6 U.S.C. S 1002 i l Q 6 0 . The text ai the old statute provided:

   iannir~ce

   required b resort LO organization or proceduremat so published. (b) Every ag~ncy shall publish or, in aecordsnee with pvblirhed IYle. make avallable to nubile moeetion all final ~ninions or orders in the adjudication of ce& (exlept those' required for gdod cause to be heid eanfidentml and not cited ai precedent.) and sli rule%. (c) Save as otherwise required by statute, matters of official rmord shall in aceordance with pvbhbhed rule be msde available to perrons properly and directly concerned exeept info~malion held confidential for good ePYSe

   INFORMATION ACT

   Such language as, "in the public interest," "internal management," "goad cause," and "to persons properly and directly con-cerned" were familiar reasons for refusing to grant access to Government documents.' Xi0 judicial procedure for correction of executive abuse of this section was provided. In order to prevent abuses by the executive of the public's right to access to Govern-ment information, the Freedom of Information Act changes the law in three significant x,ays.8 First, it eliminates the requirement that one seeking access to Government records be "properly and directly concerned." The law now indicates that "any person" will have access to most records. Secondly, the Act replaces the broad language of the old law quoted above with nine 8ome-what detailed categories of information which nay be exempted from disclosure. There is nothing in the Act which prohibits disclosure of any record: Finally, subsection (c) of the Act provides judicial redress for the wrongful withholding of records by an agency.

   111. SIGNIFICANCE OF RELEASE TO ANY PERSON

   The radical shift to the "any person" standard may have can-sequences not foreseen by the drafters of the Act if one of the interpretations3 attributed to the act is accepted. It is in the nature of man to disclose certain information to some people that he would not disclose ta others. For example, one will naturally disclose more details of his business operations to his accountant than he will to his competitor. The resolution of the question-"What is to be disclosed to whom?"-invariably involves a balancing of the nature of the information ta be released and the character of the person who will receive it,

   Professor Kenneth Culp Davis has taken the position that the Act precludes "the balancing of the interest of one private party against the interest of another private party." While this may be true with respect to Government records which do not fall within one of the nine exemptiona, it is not necessarily true for those records which can be classified within one or more of the exemptions.

   I See H.R. REP. No. 1487. 89th Cong., Zd Sese. (196s) [hereafter refemd 'See Kass. The Saw Fveedon oj Inio-tian Ant, 63 A.B.A.J. 667,

   'Sss Davis, ~upro

   note a, st 76s. 8Davi~,wpra note 3.'Id. at 766.

   to a3 the Houae Report and cited 88 Hacse Rm.1 (emphasis added).

   668-68 (1967).

   *oo biMB S

   Professor Davis reaches his conclusion in this nay: The Act'? sole concern 1s wth ahat must be made public 07

   not made publie. The Act never provider for dirclorure to pome p'ivate pa-:les and ridholding from athers. The main p~onsion of Beetion 3 bays that information IS LO be made avaiable "to the public" and the central prnwrm of subsectlam !e) requires a w l - ability ai records to "any pemon."

   That reooimd disclosure ,under the Act can never depend "pan the intereat or iaek of interest of the party reekmg diSelomra is emphasized by the history. The p~e,laus section 3 provided far dis-clomre ''to pemns properly and dlreetly concerned." That was changed to "any pereon "

   [Ulnder the Act, Emle Sam's informatmn is either made pub. lie OT nor made public. The Act never 7epuiras it to be protected from all except those rho haie a special need far It.

   [AI can~equenee of 1:mifmg the AeVs prowiion(i to disclosure "to the public'' and 'IO m y perbon" is to preclude the balancing of the interest of me private party against the interest of another pmate party:

   But there may be fiawvs in this approach. In the first place there is no "sole" concern of the Act. The Act i s as much concerned with who IS to make the decision to release information. and how the decision is to be made, as it is in what the ultimate decision will be. Hence Congress provides the guidelines for the executive to follow in carrying out the will of Congress and provides judicial iunsdiction and sanctions to insure compliance. Even if the "sole" concern of the Act were Kith the decision itself, a more correct atatement of the issue to be decided would be what must be made public or what mag be withheld rather than "what must be made public or not made publie." It is not true that "under the Act, Uncle Sam's information 1s either made public or not made public." Khat is true is that under the Act, ''Uncle Sam's'' information is either made available to any person, or if an exemption ta disclosure can be applied. an agency...