APPENDIX O HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, Hon. EDWARD H. LEVI, Attorney General of the United States, DEAR MR. ATTORNEY GENERAL: As you know, on September 22 Secretary of Commerce Rogers C. B. Morton refused to comply with a duly issued subpoena of this Subcommittee. This action, in my opinion, placed him in contempt of the Subcommittee and the Congress. Secretary Morton based his refusal to comply with the subpoena on your Opinion dated September 4, 1975. While reliance on an incorrect legal opinion is not a defense to a citation for contempt of Congress (Sinclair v. United States, 279 U.S. 263, 299 (1929)), the Subcommittee has nonetheless looked into the question of the validity of your opinion. I enclose for your information copies of the corrected transcripts of the Subcommittee's hearings of October 21 and 22, together with the Opinions of Professors Raoul Berger, Norman Dorsen, and Philip Kurland. I would very much appreciate your carefully reviewing this material and advising me whether you continue to believe your Opinion is correct. Sincerely, Enclosures. Hon. JOHN E. Moss, JOHN E. Moss, Chairman, Oversight and Investigations Subcommittee. OFFICE OF THE ATTORNEY GENERAL, Chairman, Oversight and Investigations Subcommittee, Committee on DEAR MR. CHAIRMAN: Thank you for sending to me the corrected transcripts of the Subcommittee's hearings of October 21 and October 22, together with the opinions of Mr. Berger, Mr. Dorsen, and Mr. Kurland. Of course, I am happy to carefully review this material, which I am now doing. Sincerely, *** EDWARD H. LEVI. Hon. JOHN E. Moss, OFFICE OF THE ATTORNEY GENERAL, Chairman, Subcommittee on Investigations and Oversight, Committee on Interstate and Foreign Commerce, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: This letter is in reference to the hearings being conducted by the Oversight and Investigations Subcommittee concerning Secretary of Commerce Morton's refusal to produce, in response to a subpoena of the House Committee on Interstate and Foreign Commerce, certain reports filed by private firms with the Department of Commerce pursuant to § 4 (b) of the Export Administration Act of 1969, 83 Stat. 841, as amended, 50 U.S.C. App. 2403(b). In taking this action, Secretary Morton requested my opinion on a legal question bearing on his response. In the course of the Subcommittee's hearings, questions have been raised as to the legal merits of the opinion that I gave in answer to the Secretary's request. You have asked that I review the testimony before the Subcommittee and, in light of it, inform the Subcommittee whether I adhere to the opinion I have expressed. In his letter of August 22, 1975, to Chairman Staggers, Secretary Morton stated that he would submit the reports to the Committee "subject only to deletion of any information which would disclose the identity of the firms, and the details of the commercial transactions involved." Because the Department of Commerce expressly had advised the firms which had submitted the reports that such information would remain confidential and because disclosure would, in the Secretary's view, expose the reporting firms to possible competitive injury and economic pressure, it was the Secretary's judgment that maintaining the confidentiality of the information "would not be contrary to the national interest and, in fact, that . . . disclosure might well be inconsistent with the national interest." The Secretary therefore concluded that under the terms of § 7(c) of the Act, 50 U.S.C. App. § 2406 (c), disclosure of the information to the Committee was not justified. Section 7 (c) of the Act provides that: No department... or official exercising any functions under this Act shall publish or disclose information obtained hereunder which is deemed confidential . . . unless the head of such department. . . determines that the withholding thereof is contrary to the national interest. By letter to me of August 22, Secretary Morton requested my opinion as to whether he was correct in thinking that, before disclosing information to a Congressional committee as well as to the public generally, $7(c) requires him to determine that "withholding [would be] contrary to the national interest." Secretary Morton's request was forwarded to Assistant Attorney General Antonin Scalia, Office of Legal Counsel, to prepare a recommended response. See 28 C.F.R. § 0, 25. In accordance with regular Department of Justice procedure, first established by Attorney General Stone and explained in Mr. Scalia's letter to you of October 21, the Office of Legal Counsel received a draft memorandum of law. prepared in the Commerce Department's Office of General Counsel, to serve as a starting point for the Office's independent research and consideration of the problem. After reviewing the Office of Legal Counsel's recommendation. I informed Secretary Morton by letter of September 4, 1975, that, in my judgment. § 7 (c)'s requirements apply to disclosure to Congressional committees and that "the Committee is not entitled to receive the reports in question unless, in exercising the discretion granted by $7(c), the [Secretary] determine[s] that withholding them would be 'contrary to the national interest," " I continue to adhere to the conclusion drawn in my letter. Because of the testimony you have sent to me, however, it may be useful for me to provide further explanation of certain points. The question posed to me by Secretary Morton and addressed in my letter had nothing whatever to do with the applicability of executive privilege or the appropriateness of its assertion in this instance. The information that the Secretary has declined to disclose concerns only the identity of reporting firms and the details of commercial transactions reported in confidence to the Government. My opinion, therefore, had to do solely with the bearing of §7(c) on the Secretary's response to the Committee's subpoena. The question turns on the proper construction of the section, which in turn depends on Congress' intent in enacting it. The section originally was enacted in its present form in 1949. 63 Stat. 7. The legislative history pertaining to the provision at the time of its original enactment was sparse. There is, however, legislative history bearing on the later reenactments, which I set forth in my letter to the Secretary. In addition to legislative history, I know of no way to determine congressional intent other than to look to the precise language the statutory formula-Congress has chosen to employ, and to the meaning the formula was intended to have and is understood to have in other contexts. If Congress knows that certain. forms of statutory language generally are taken as having a certain meaning, I assume that it would not employ the same language without intending that it be understood in the same way. In his testimony, Mr. Kurland made the point, with respect to statutory interpretation, that there are three kinds of statutes: "one specifically says that Congress is not barred from access; a second specifically says that Congress is barred from access; and the third, on which the first two shed no light whatsoever, where Congress is silent." My own interpretation of the significance of the statutory pattern is different. So far as I can tell there is in fact no statute that simply and explicitly bars Congress from access. For example, 1 U.S.C. § 112b requires the transmission to Congress of international agreements other than treaties. The statute's explicit barring of disclosure to Congress, such as it is, goes only to the point that when the President believes that an agreement contains sensitive national security material, the statute directs him to transmit the agreement only to certain committees. I believe the significance of the pattern of statutes in this area is that Congress has known how to make its intent clear in legislation. when it intended information, otherwise confidential, nevertheless to be supplied to it. Since legislation that promises confidentiality speaks not only to the Executive, but particularly to the public where private interests are involved, I do not find it strange that the normal interpretation, where private interests are involved, is that the statute was intended to have its plain meaning, rather than to imply an exception for the Congress itself. Like a number of other statutes. § 7(c). in contrast to § 112b, provides generally for the confidentiality of certain information `obtained by the Executive from private sources, information that concerns, not Executive actions, but private individuals and firms. As I have indicated, neither § 7(e) nor, to my knowledge, any other statute expressly forbids supplying information to Congress or any of its committees. It is relevant to observe, however, that a provision comparable to § 7(c), dealing with similar private commercial informa tion obtained by the Government and vesting discretion to disclose in the President, had been interpreted by Attorney General Bonaparte in 1909 to apply as much to disclosure to Congressional investigative committees as it did to disclosure to the public. 27 Ops. A. G. 150 (1909). It should not have been unknown, then, to the Congress in 1949, when § 7 (c) was enacted, that the section could be taken as having the same effect. That it was not unknown seems to me clear from the inclusion, in other statutes providing for the confidentiality of information collected by or supplied to the Government, of express exceptions for committees of the Congress. One of these, 26 U.S.C. $6103, which limits disclosure of taxpayer returns, was enacted in very nearly its present form in 1926, 44 Stat. 51, 128. The statute's general confidentality provision, § 6103 (a) (1), does not expressly prohibit disclosure to Congressional committees. One of the exceptions to the provision, § 6103(d), provides, however, that returns shall be furnished, on request, to "the Committee on Ways and Means of the House of Representatives, the Committee on Finance of the Senate, or a select committee of the Senate or House specially authorized to investigate returns by a resolution of the Senate or House, or a joint committee so authorized by concurrent resolution.* *** The necessary implication of § 6103 (d)'s express exclusion of certain committees is that § 6103(a) (1) does apply to the Congress, despite its failure to refer to Congress expressly. In light of this, I do not see how it can be said that a restriction on disclosure to Congressional committees must, as a matter of construction, be express, and cannot be implied from generally applicable confidentiality provisions. The point applies as well to 7 U.S.C. § 12–1, which, although otherwise vesting in the Secretary of Agriculture discretion to disclose the names of members of commodity boards of trade, requires disclosure "when requested by a Committee of either House of Congress, acting within the scope of its jurisdiction." That section was enacted in 1947. shortly before the original enactment of $7(c). A large number of other confidentiality provisions, some enacted before $ 7(c), and some after, expressly state that they do not authorize the Executive to withhold information from Congress. E.g., 15 U.S.C. §§ 78kkk, 80b–10 (b), 1945; 42 U.S.C. § 2454; 49 U.S.C. § 1504. Had Congress assumed that statutory confidentiality provisions in general have no application to its committees, it can have had no reason for expressly excepting its committees from the application of some such provisions but not of others. These factors seem to me strongly to favor the view that, in enacting $7(e), Congress assumed that it would apply to its own committees' requests for information obtained under the Act. Nor do I think that this is, in any way, an irrational intent to attribute to the Congress. The section's purpose seems to me clear. Although information about private firms business transactions is indispensable to enforcement of the Act Congress presumably was aware that disclosure of such information might subject firms to risk of competitive injury and, to a greater degree than information about domestic business transactions, to a danger of economic reprisal. To encourage voluntary compliance with reporting requirements, and to ensure fairness to reporting firms, Congress, in enacting $7(c), promised that the information obtained would be held in confidence unless the Secretary determined that, by doing so, the national interest would be harmed. It does not seem to me unreasonable for Congress to determine that this promise should hold even as against its own committees, to judge that the Secretary, with knowledge of the precise nature of the information and of the positions of reporting firms, would be able, more certainly than a Congressional committee or its members, to identify the dangers that disclosure might present. Subsequent events seem to me to reinforce this interpretation. You areare aware, I am sure, that, in the past, the Department of Commerce on occasion has referred to § 7 (c) in declining to disclose to Congressional committees information obtained in confidence under the Act. These occasions led to proposals in 1962 in both the House and the Senate to make clear that §7 (c) does not prohibit furnishing information to Congressional committees. These efforts were unsuccessful, in major part because § 7(c) does not prohibit disclosure, but makes disclosure discretionary, and it has often been possible to work out accommodations between the committees' need for information and the necessity that certain information be maintained in confidence. See 108 Cong. Rec. 11480-41. Moreover, in the course of the congressional debates, doubts were expressed about the feasibility of segregating, by statute, information which fairly can be disclosed from that which cannot. Id., at 11488. That the Department has adhered to what appears to have been its previous interpretation of the statute is not, therefore, surprising. It has relied on its interpretation in assuring reporting firms of confidentiality, and reporting firms have, in turn, relied on this assurance. In short, in its repeated reenactment of § 7 (c) Congress cannot have been unaware that the section was taken as applicable to its committees, or that, not only the Government, but private interests as well had acted in reliance upon that construction. If Congress had come to think that the promise of confidentiality did not extend, or should not extend, to the provision of information to its committees, it seems to me reasonable to suppose that its judgment would have been expressed in statute. In the course of the Subcommittee's hearings reference has been made to a list, prepared by the Library of Congress' Congressional Research Service, of some one hundred statutes containing confidentiality provisions comparable to § 7(c). Fear has been expressed that if my interpretation of $7(c) is correct, these other statutes could be invoked as justifying withholding by the Executive, to the serious detriment of congressional investigative efforts. With all respect, I think that these fears are greatly exaggerated. Some of the statutes the list contains, including some that I have mentioned above, expressly do not apply to disclosure to Congressional committees. Moreover, some of the statutes listed have been repealed. More important, however, the statutes contained in the list show wide variation in the form of language used and the purpose they serve. I would not be prepared to say that each necessarily applies to disclosure to Congress. The language, purpose or consistent interpretation may well mandate a contrary reading. Even if, however, a statute does apply to disclosure to Congress, that does not necessarily mean that information cannot or should not be disclosed. Many of the statutes give to federal agencies a discretion to |