August 6, 1964

to your inspections. Should a dispute arise as to whether any particular documents should be produced, I am also willing to agree to recommend to the record custodians that they forward the same to the Board for their inspection and decision as to whether they should be made available to you. I am confident that the custodians of the records will comply with these recommendations promptly.

Counsel for appellant in a letter received by the Board on June 10, 1964, disagreed with the Department Counsel's view of the law, and requested that "the Board direct the full production of documents. sought by the appellant and as agreed at the pre-hearing conference.” We regard this request as being, in substance, a motion for production of all of the documents described in the letter of March 26, 1964.

The disclosure of records of the Department of the Interior is the subject of specific statutory provisions. Section 1 of the Act of August 24, 1912, 37 Stat. 497, as amended, 5 U.S.C. sec. 488, states, in pertinent part:

The Secretary of the Interior, or any of the officers of that Department may, when not prejudicial to the interests of the Government, furnish authenticated or unauthenticated copies of any official books, records, papers, documents, maps, plats, or diagrams within his custody, **

Section 2 of the same Act, 5 U.S.C. sec. 489, states:

Nothing in this Act shall be construed to limit or restrict in any manner the authority of the Secretary of the Interior to prescribe such rules and regulaions as he may deem proper governing the inspection of the records of said department and its various bureaus by the general public, and any persron having any particular interest in any of such records may be permitted to take copies of such records under such rules and regulations as may be prescribed by the Secretary of the Interior.

These statutory provisions have been implemented by regulations, 43 CFR 2.1-2.20, adopted by the Secretary of the Interior. The key substantive section, 43 CFR 2.1, reads as follows:

Unless the disclosure of matters of official record would be prejudicial to the interests of the Government, they shall be made available for inspection or copying, and copies may be furnished, during regular business hours at the request of persons properly and directly concerned with such matters. Requests for permission to inspect official records or for copies will be handled with due regard for the dispatch of other public business.

The procedural system prescribed by the regulations contemplates that the initial determination as to whether a record should be disclosed will be made by the custodian of the record or, in certain situations, by the head of the bureau or office concerned. The initial de

The omitted portion of the section relates to the fees to be charged for copies so furnished. 43 CFR 2.2, 2.6, 2.20.

termination may be appealed to, or, in certain situations, reviewed on his own motion by, the Secretary of the Interior."

The regulations further provide that the Solicitor of the Department of the Interior "may exercise all the authority of the Secretary" in making final determinations as to whether particular records should be disclosed. Other regulations adopted by the Secretary, those relating to the Board of Contract Appeals, provide that the "Board may, in its discretion, decide questions which are deemed necessary for the complete decision on the issue or issues involved in the appeal, including questions of law." Complete decision of the issue or issues involved in an appeal may well necessitate the decision of questions relating to the disclosure of records that are alleged by one party or the other to be pertinent to such issue or issues.

Neither of the delegations mentioned in the preceding paragraph purports to be exclusive. The general practice followed under them is for the Solicitor to act in those cases where the disclosure sought is not connected with any pending contract appeal, and for the Board to act in those cases where the records are sought, for purposes of discovery or for use as evidence, in connection with a pending contract appeal. Hence, no problem of jurisdiction exists.

The basic issue presented for our decision is whether the documents that counsel for appellant wants to see, but that are not within the classes of documents Department Counsel is willing to produce, are documents whose disclosure would be "prejudicial to the interests of the Government," within the meaning of the statutory and regulatory provisions quoted above. The regulations impose specific limitations upon the disclosure of documents classified as "Top Secret," "Secret," "Security Confidential," "Restricted" or "Confidential," but none of the documents here in question are alleged to be so designated. As the Chairman of the Board noted at the conference, the policy of the Department has been to favor substance over technicalities, disclosure over non-disclosure. 10 Nevertheless, as he also pointed out, this does not mean that everything the appellant wants to see must be furnished irrespective of its legal availability." Broadly expressed, the policy followed by the Department is that "restrictions on the public's right to know how the public business is conducted should be held to a minimum."

Ibid.

Ibid.

12

A supplemental delegation to the same effect is contained in 24 F.R. 1348, 210 DM 2.2A (9).

825 F.R. 2115, 211 DM 2.1. This delegation is repeated in 43 CFR 4.4.

43 CFR 2.2 (c).

10 Tr. pp. 43-45.

11 Ibid.

12 Solicitor's Opinion, 64 I.D. 463 (1957).

August 6, 1964

For the purposes of this appeal it is unnecessary to attempt to define all the situations that reasonably might be comprehended within the phrase "prejudicial to the interests of the Government." It is enough to say that documents against the disclosure of which the Government possesses a privilege, as that term is used in the law of evidence, would ordinarily be comprehended within the phrase. This is because the existence and scope of the Government's privilege against disclosure, as fashioned by the decisions of the Federal Courts applying the law of evidence, are founded upon and measured by the prejudice to the public interests that would result if the particular document or class of documents in issue were to be divulged.13

Our conclusion that documents as to which the Government possesses a privilege ordinarily may be withheld from disclosure in proceedings before the Board is further buttressed by the fact that the Rules of Civil Procedure for the United States District Courts-which are noteworthy for their liberality in matters of discovery 1-expressly exempt privileged documents from their compulsory production requirements.15 So do the rules of the Court of Claims.16

17

In the landmark decision of United States v. Reynolds " the Supreme Court upheld the Government's refusal to produce, in a suit brought under the Federal Tort Claims Act, the official accident investigation report of the crash of an Air Force plane in which three civilian observers were killed, for whose death the suit had been brought. Excerpts from the opinion that express principles pertinent to the disposition of the instant motion are set out below:

*** The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. * *

*

* On the record before the trial court it appeared that this accident occurred to a military plane which had gone aloft to test secret electronic equipment. Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.

*** Thereafter, when the formal claim of privilege was filed by the Secretary of the Air Force, under circumstances indicating a reasonable possibility that military secrets were involved, there was certainly a sufficient showing of privilege to cut off further demand for the documents on the showing of necessity for its compulsion that had then been made.

13 See United States v. Reynolds, 345 U.S. 1 (1953); Machin v. Zuckert, 316 F. 2d 336 (1963), cert. denied 375 U.S. 896 (1963); Kaiser Aluminum & Chemical Corporation v. United States, 141 Ct. Cl. 38 (1958); cf. Duncan v. Cammell, Laird & Co. (1942), A.C. 624. 14 See Hickman v. Taylor, 329 U.S. 495 (1947).

16 Fed. R. Civ. P. 34.

16 Ct. Cl. R. 39 (b), 40(a).

"Supra note 13.

In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail. Here, necessity was greatly minimized by an available alternative, which might have given respondents [the claimants] the evidence to make out their case without forcing a showdown on the claim of privilege. By their failure to pursue that alternative, respondents have posed the privilege question for decision with the formal claim of privilege set against a dubious showing of necessity.

There is nothing to suggest that the electronic equipment, in this case, had any causal connection with the accident. Therefore, it should be possible for respondents to adduce the essential facts as to causation without resort to material touching upon military secrets. Respondents were given a reasonable opportunity to do just that, when petitioner [the Government] formally offered to make the surviving crew members available for examination. We think that offer should have been accepted.

Another leading decision is Kaiser Aluminum & Chemical Corporation v. United States.18 There the Court of Claims upheld the Government's refusal to produce, in a suit for breach of contract, a written opinion submitted to the contracting officer by one of his subordinates. The opinion consisted of, and was confined to, recommendations and advice on program policy in connection with a proposed sale of aluminum plants. Some of these plants were ultimately sold to plaintiff under a contract which contained a most favored purchaser clause, and others were ultimately sold to Reynolds Aluminum Company on terms alleged by plaintiff to contravene that clause. The portions of the opinion which are pertinent to the instant motion read as follows:

* When the United States consents to be sued, simpliciter, full disclosure of all facts in possession of either party to the litigation is normally desirable. There are recognized exceptions when the production of the evidence would be contrary to the interests of the public. Disclosures that would impair national security or diplomatic relations are not required by the courts. It is accepted that the identity of informers, as such, in the interests of the State, may be protected even in civil cases.

*

**Here the document sought was intra-office advice on policy, the kind that a banker gets from economists and accountants on a borrower corporation, and in the Federal government the kind that every head of an agency or department must rely upon for aid in determining a course of action or a summary of an assistant's research. *** Free and open comments on the advantages and disadvantages of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled

18 Supra note 13.

August 6, 1964

by publicity to bear the blame for errors or bad judgment properly chargeable to the responsible individual with power to decide and act. Government from its nature has necessarily been granted a certain freedom from control beyond that given the citizen. It is true that it now submits itself to suit but it must retain privileges for the good of all.

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.

When this Administrator came to make a decision on this $36,000,000 contract, with intricate problems of accounting and balancing of interests, he needed advice as free from bias or pressure as possible. It was wisely put into writing instead of being left to misinterpretation but the purchaser, plaintiff here, was entitled to see only the final contracts, not the advisory opinion.

That is not to say that every file of government papers is closed to discovery. Here, however, there was an administrator reaching a decision. *** The document sought here was a part of the administrative reasoning process that reached the conclusion embodied in the contracts with Kaiser and Reynolds. The objective facts, such as the cost, condition, efficiency, terms and suitability are otherwise available. So far as the disclosure of confidential intra-agency advisory opinions is concerned, we conclude that they belong to that class of governmental documents that are privileged from inspection as against public interest but not absolutely. It is necessary therefore to consider the circumstances around the demand for this document in order to determine whether or not its production is injurious to the consultative functions of government that the privilege of non-disclosure protects.

We have spoken of the broad coverage of the plaintiff's request. While this is not the attorney-client privilege, the demand for this document seeks to lay bare the discussion and methods of reasoning of public officials. The fact that the author is dead is immaterial here. It is not a privilege to protect the official but one to protect free discussion of prospective operations and policy. This goes beyond the disclosure of primary facts upon which conclusions are based. It is akin to the request for "production of written statements and mental impressions contained in the files and the mind of the attorney," which are unprotected by the attorney-client privilege. Cf. Hickman v. Taylor, supra at 509. Nothing is alleged by Kaiser, through the affidavit of its negotiating Vice President, Mr. Calhoun, or otherwise, to suggest any need for production of the document to establish facts.

Viewing this claim of privilege for the intra-agency advisory opinion in its entirety, we determine that the Government's claim of privilege for the document is well founded. ***

Among the authorities relied upon in Kaiser were the Morgan decisions of the Supreme Court.19 The holdings in Morgan, so far as they are pertinent to the question of privilege, are summarized in the following quotation from the last of the four opinions:

19 Morgan v. United States, 298 U.S. 468 (1936); Morgan v. United States, 304 U.S. 1 (1938); United States v. Morgan, 307 U.S. 183 (1939); United States v. Morgan, 313 U.S. 409 (1941).