United States of America, have filed their brief as Appellants in No. 73-1258, on their appeal from paragraph 1 of the March 2, 1973 order. (Hereinafter these parties will be referred to as the "government".) Plaintiffs in the court below, David Dinsmore Comey and Businessmen for the Public Interest, Inc., file this Brief in response to the government's brief in No. 73-1258 and in support of their appeal (No. 73-1358) from paragraph 2 of the March 2, 1973 Order. (Hereinafter these parties will be referred to as "plaintiffs".) STATEMENT OF THE ISSUES PRESENTED FOR REVIEW The issue presented by the government's appeal in No. 73–1258 is whether the district court, having made an in camera inspection of excised portions of certain documents, correctly determined that as to four specific excised items, the government had failed to sustain its burden to show exemption from production under the Freedom of Information Act and therefore the four items should be produced to plaintiffs. There are two issues presented by the plaintiffs appeal in No. 73-1358: Whether the district court erred in denying production to plaintiffs of excised portions of documents which the court inspected in camera and which on their face reflect that they cannot be part of the confidential deliberative process of a government agency. Whether the district court erred in ruling that the government has sustained its burden to show exemption from production under the Freedom of Information Act, of documents which the court had not inspected in camera and which the government had made no effort to demonstrate the property of withholding. STATEMENT OF THE CASE AND OF THE FACTS Plaintiffs brought this suit under the Freedom of Information Act (5 U.S.C. § 552) to compel the government to produce certain specified documents. In its present posture, it seeks no relief other than the production of documents. Having earlier agreed to produce many of the documents sought by plaintiffs, on November 30, 1972, the government filed a motion for summary judgment as to the other requested documents. The motion claimed that all of the documents, in their entirety, in four specific categories were exempt from production under exemption 5 of the Freedom of Information Act (5 U.S.C. § 552(b) (5)). After the motion had been fully briefed by all parties, the district court determined to consider only a portion of one of the four categories—"minutes of meetings of the Advisory Committee on Reactor Safeguards (ACRS) and its subcommittees." By its Order of February 5, 1973, the district court ordered that minutes of full ACRS meetings relating to the Zion, Kewaunee and Cook nuclear power plants, be produced for plaintiffs with excissions therefrom of material claimed to be exempt from production. The order also directed the government to furnish unexcised copies of those documents to the district court for its in camera inspec tion. In addition, the order of February 5, 1973, provided that the issue of the plaintiffs' right to other documents in that category-minutes of full ACRS meet ings relating to plants other than Cook, Kewaunee and Zion and all ACRS subcommittee minutes-as well as the other three categories, would be continued under advisement by the Court (App. 4-5). The government complied with the district court's order by furnishing to plaintiffs copies of 40 pages of minutes of the full ACRS relating to the Zion, Kewaunee and Cook nuclear power plants, all of which the government previ 2 The Verified Complaint also sought an injunction against certain administrative proceedings, but that relief has not been pursued by plaintiffs. 3 The four categories of documents which the government sought to withhold are described as follows (Defendants' Memorandum in Support of Motion for Summary Judgment, p. 2): "1. Four preliminary drafts of Draft Environmental Statements issued by the AEC pursuant to the National Environmental Policy Act of 1969 (two of the drafts deal with the 'Zion' Nuclear Power Plant; one deals with the 'Kewaunee' Plant, and one with the 'Cook' Plant). "2. Minutes of meetings of the Advisory Committee on Reactor Safeguards (ACRS) and its subcommittees. "3. Approximately 20 Status Reports and Background Statements totaling about 65 pages, prepared by members of the ACRS Staff. "4. Three consultants' letter-reports concerning the 'Cook' reactor." 4 It is only this category which is before the Court in both appeals. The issue of the government's right to withhold documents in the other three categories is still pending in the district court (App. 49, ¶ 3). ously had claimed were exempt from production. From the 40 pages of documents produced to the plaintiffs, there are approximately 54 excissions (App. 6-45). The government also furnished to the district court for its in camera inspection unexcised versions of those same documents. After its in camera inspection, on March 2, 1973, the district court entered the order from which both the government and the plaintiffs appeal. Of the approximately 54 excissions made by the government, the district court directed that four specific items be furnished to the plaintiffs (App. 48-49, ¶ 1). It is from that portion of the March 2, 1973 Order which the government appeals. The order further directed that none of the following documents, or portions of documents, need be furnished to plaintiffs (App. 49, ¶ 2): (1) All items excised by the government from the minutes of the full ACRS on the Zion, Kewaunee and Cook plants (except for the four items specifically directed to be produced); (2) All minutes of the full ACRS relating to nuclear power plants other than Zion, Kewaunee or Cook (none of which had been inspected in camera by the district court); and (3) All ACRS subcommittee minutes (none of which had been inspected in camera by the district court). It is from that paragraph 2 of the March 2, 1973 order that the plaintiffs appeal to this Court. ARGUMENT Introduction We agree with the government that the Supreme Court's decision in Environmental Protection Agency v. Mink, U.S. 93 S. Ct. 848, 35 L. Ed. 2d 119 (1973) is the controlling authority. As pertinent here, that decision describes the procedure to be utilized by the district court in determining whether the government has sustained its burden of showing that the documents are exempt from production. With respect to the plaintiffs' right to some of the information sought to be withheld by the government, a procedure approved by the Supreme Court— in camera inspection by the district court-was employed. Included in the documents so reviewed by the district court are the four items directed to be produced, which are the subject matter of the government's appeal. As to those four items, since the proper procedure was utilized and since the government has shown no basis to upset the district court's ruling after the in camera inspection, the district court's order should be affirmed (Section B, pp. 11-17, infra.) As to some of the other documents inspected by the district court in camera, although the procedure employed was proper, the decision reached by the district court that the government had sustained its burden is in error since, on their face, some of those documents cannot come within exemption 5 of the Act. As to those, the district court's order should be reversed and the government should be ordered to produce them to plaintiffs (Section C, pp. 17-19, infra.) Finally, there are documents which the district court has denied to plaintiffs without having reviewed them in camera and without the government having otherwise made any attempt to sustain its burden to show exemption from production. As to those, the district court's order should be reversed and the government should be ordered to produce the documents to plaintiffs, or, at the very least, the district court should be directed to make an in camera inspection (Section D, pp. 19–21, infra.) A. The policy of the act that the courts, not the Government, should determine whether documents are exempt from production has been implemented by EPA v. Mink. The Freedom of Information Act is aptly named (5 U.S.C. § 552; hereinafter the "Act"). It requires that ". . . each agency on request for identifiable records shall make the records promptly available to any person." (5 U.S.C. § 552 ( a ) (3)). Congress made clear that the policy of the Act was to expose the actions of administrative agencies to public scrutiny. H.R.Rep. No. 1497, 89th Cong., 2d Sess., 1-2, 5-6, 8-9, 11 (1966); S. Rep. No. 813, 09th Cong., 1st Sess., 3-6, 8, 10 (1965). In manifesting that policy, the Act does not require a person seeking agency records to make any showing of need for or relevance of the documents.5 5 The Court should not draw the inference, however, that plaintiffs here do not have a need for the documents in issue. Quite the contrary is true. As the government points out, plaintiffs are parties to the AEC proceedings concerning licensing of nuclear power plants (Government's Brief, p. 3). See, e.g., Bannercraft Clothing Company v. Renegotiation Board, 466 F.2d 345, 352-53 (D.C. Cir. 1972). The Act does recognize certain limited situations where an agency may withhold its documents from a member of the public (5 U.S.C. § 552 (b)). Those statutory exemptions are the exclusive basis for the government to withhold production, and they are to be narrowly construed. 5 U.S.C. § 552 (c); Environmental Protection Agency v. Mink, U.S. 35 L.Ed.2d 119, 133 (1973); Bristol-Meyers Company v. Federal Trade Commission, 424 F.2d 935. 938 (D.C. Cir. 1970). The Act also outlines the procedure for a person to obtain records which an agency refuses to produce. It provides for jurisdiction of the district court to order the production of records improperly withheld. The district court is directed, explicitly, to determine the matter de novo, and the burden is on the agency to sustain its action (U.S.C. § 552 (a) (3)). As the court said in Soucie v. David, 448 F.2d 1067, 1077 (D.C. Cir. 1971): "The Act rejects the usual principle of deference to administrative determinations by requiring a trial 'de novo' in the district court." Of course, in such a case the only issue is the plaintiffs right to the documents-there is no other underlying cause of action. Here, the government sought to justify its withholding of certain of its records solely on the ground of exemption 5 (5 U.S.C. § 552 (b) (5)).o Prior to the decision of the district court, the Supreme Court decided EPA v. Mink, supra. In its first decision under the Act, the Court had before it claims of exemption under exemptions 1 and 5 of the Act. As to exemption 1, covering "matters specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy", the Court announced an inflexible rule. The agency need only show the fact of the classification in order to sustain its burden. The district court could not inquire into the propriety of the classification by in camera inspection or otherwise. EPA v. Mink, supra, 35 L.Ed.2d at 130-131. As to exemption 5, however, the Court made clear that the agency must not only classify the documents as being within the exemption, but also must prove that they are in fact entitled to the protection of the exemption (id. at 134-36). The district court had sustained the agency's claim of exemption based upon affidavits and the Court of Appeals reversed holding that an in camera inspection by the district court was required. The Supreme Court reversed on the ground that an in camera inspection is not always required. Rather, the Court said that (id. at 135): 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 bare bones of protected matter. In short, in camera inspection of all documents is not a necessary or inevitable tool in every case. Others are available. Thus, the Supreme Court has made clear, and the relevance of the Mink decision here is, that there are two ways in which the government may seek to sustain its burden to withhold documents under exemption 5: by detailed affidavits or oral testimony; or by an in camera inspection by the district court. Under the Act it is the judiciary and not the administrative agency which determines whether agency records may be withheld from the public. B. The district court, after its in camera inspection, properly ordered the Government to produce four specific excised items The government's initial position was that ACRS minutes, in their entirety, were exempt from production under the Act (Motion for Summary Judgment; Defendants' Memorandum in Support of Motion for Summary Judgment). It 6 That section exempts "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." attempted to support that claim by affidavits. The district court, however, ordered production of such minutes for the Zion, Kewaunee and Cook plants to plaintiffs, with excissions of material which the government claimed to be exempt, and submission to the court of unexcised versions (App. 4–5). Unlike the agency in Mink, the government did not appeal that order, either insofar as it directed production to plaintiffs or insofar as it required an in camera inspection. In complying with the order, the government offered a further affidavit in support of its claim that the excised material was exempt from production. The district court conducted an in camera inspection and ordered that four specific items excised by the government be furnished to plaintiffs (App. 48, ¶ 1). Although the district court gave no reasons for its decision, clearly both of the procedures authorized by EPA v. Mink were utilized by the government and the district court--affdavits were submitted and an in camera inspection was made. The government has offered no basis for reversal of the district court's determination that the government had not sustained its burden of showing exemption of the four items. We believe that the government's argument, fairly characterized, seeks to make only one generalized point: the ACRS believes that its meetings involve the deliberative, decision-making process and must therefore be kept confidential (Government's Brief, pp. 15-20). It relies upon the same conclusory affidavit which it filed in the court below (Government's Brief, pp. 16, 17). Significantly, the government directs no argument at all specifically to the four items. The government does not even describe the context of or direct this Court's attention to the four items as to which it seeks reversal. The government simply ignores the plain language of the Act that "the court shall determine the matter de novo." 5 U.S.C. § 552(a) (3). It is the district court that is required to make the determination, not the government agency. Here the district court reviewed the documents in camera and concluded that the government had not sustained its burden as to the four items. The government's only argument to this Court as to why the district court decision was in error is that the agency claims the documents are exempt. Throughout its discussion of the legal principles applicable to exemption 5 under the Act, the government urges that its purpose is to maintain confidentiality (Government's Briefs, pp. 12, 13, 15 and 16, footnotes 10 and 11). The government also urges that confidentiality is considered necessary by the ACRS (Government's Brief, pp. 5, 6, 7). Yet nowhere in its brief does it argue that in fact the four items in issue were kept confidential by the members of the ACRS. The Further Affidavit of Mr. Fraley, submitted in support of the claim of protection for the excised material, does not use the word "confidential", except with respect to Westinghouse. The significance of the government's failure to argue the fact of confidentiality is that it appears from the face of the documents that they are not confidential. The documents, it should be remembered, are minutes of meetings and thus, presumably, a record of what transpired. If there were nonmembers of the ACRS in attendance at the meeting, then what transpired was not confidential and the recordation of it cannot be considered confidential." While plaintiffs' obviously are handicapped in arguing as to the content of material we have not seen, we believe that this Court should have before it the context of the four items. We further believe that the context of the four items in question demonstrates the correctness of the lower court's decision on lack of confidentiality, as well as other grounds. The four items which the court below ordered the government to produce are as follows: 1. "The last sentence of the last paragraph of the page entitled "Excerpt from Summary of 98th ACRS Meeting, June 5-8, 1968, Specific Projects, 1 Zion Station." (App. 48, ¶1a.) This item appears at the bottom of page 25 of the Appendix hereto (App. 25). 2. "All of the matter under item 3.5 Zion Station, Units 1 and 2 (O.L.) on the page entitled "Excerpts from Summary of 147th ACRS Meeting, July 13–15, 1972." (App. 48, ¶1b.) This item appears on page 29 of the Appendix hereto (App. 39). 3. "All of the matter on page numbered 45 and entitled "Summary Report, 147th ACRS Meeting, Meeting Date: July 13-15, 1972," (App. 48, ¶1c.) This item appears on page 37 of the Appendix hereto (App. 37). 7 If confidentiality does not exist, the government does not meet the threshold test of exemption 5-that the document is an "inter-agency or intra-agency" memorandum or letter. 26-875-74- -19 4. "The three digit number in the second full paragraph on page numbered 44 and entitled "Summary Report, 148th ACRS Meeting, Meeting Date: August 10– 12, 1972." (App. 48-49, 1d.) This item appears on page 17 of the Appendix hereto (App. 17). With respect to items 1 and 2, their context strongly suggests that there were nonmembers of the ACRS in attendance at the time of the meeting recorded in the document. And that fact is explicit with respect to item 3. The first line of the page on which item 1 appears, refers to a "discussion with the applicant" and in the middle of the page there is a reference to things that the ACRS indicated (App. 25). The inference that there were non-members of the ACRS present at the meetings of which items 1 and 2 are recordations is supported by the fact that other documents reflect explicitly that in other instances there were nonmembers of ACRS present at its meetings (e.g., App. 13, 16, 18, 20, 28, 32, 33), and that minutes of some meetings of the ACRS were marked "executive session" (see, e.g., App. 12, 24) while items 1 and 2 are not so marked. Meetings of which the minutes were marked "executive session" presumably, were attended only by ACRS members. On the face of the page on which item 3 appears, it is clear that non-members of the ACRS were in attendance. Even more dramatically it appears that the item which the government claims was part of its decision-making process is a continuation of information given by the ACRS to Mr. Lee, of Commonwealth Edison Co. (App. 37). It seems incomprehensible that information given to a representative of a power company, seeking a license from the AEC, could be deemed to be confidential to the agency and part of its deliberative process and thus not available to members of the public. It is probably true that the government's appeal with respect to item 4 is moot, since the district court announced the number in open court, on the record. (Transcript of Proceedings, February 26, 1973, page 3). In any event, that three digit number, even under the government's view of the law, cannot be exempt under the Act. Under the standard articulated by the government, it is clear that the number is "purely factual" and "severable from its context (Government's Brief, p. 18), since the number is the only item in that whole paragraph which had been excised by the government. With respect to all four items the order of the district court should be affirmed. The district court determined that the government had not sustained its burden of showing exemption from production, and the government has failed to demonstrate any way in which the district court erred in that determination. The governernment has made no argument that the district court applied an improper standard. The order of the district court, appealed from in No. 73-1258, should be affirmed. C. The district court erred in denying to plaintiffs certain of the items excised by the government, since, on their face, certain of the documents cannot satisfy the requirements of exemption 5 Although plaintiffs do not object to the procedure employed in the district court of conducting an in camera inspection of the excissions by the government, we believe that the district court erred in its substantive determination in ruling that some of the material excised is exempt from production. As we have just discussed, minutes of meetings of the ACRS at which non-members were in attendance cannot be the type of deliberative, confidential communications exempted from public inspection under exemption 5. The following items *** reflect that non-members of the ACRS were in attendance at the meeting of which they are minutes: 1. Two items excised on page 14 of the Appendix hereto (App. 14). 2. One item excised on page 15 of the Appendix hereto (App. 15). 3. Two items (the first and last ones) on page 17 of the Appendix hereto (App. 17). 4. Two items on page 18 of the Appendix hereto (App. 18). 5. One item on page 19 of the Appendix hereto (App. 19). 6. One item on page 20 of the Appendix hereto (App. 20). 8 The paucity of the government's argument urging reversal is highlighted by this item. The government has argued that "manifestly there are no 'purely factual' matters involved here, (Government's Brief, p. 19). |