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of the informer's identity must give way is that is "essential ... to a sair determination of a causc":407 and that pronouncement is strengthened by the constitutional implications of the Jencks case*88 and of Grccnc v. McElroy.400

What of the innocent individual who may be injured by disclosure in a proceeding against another of a confidential report based on unsifted charges? In private litigation the court may be asked to screen that which is irrelevant to the case, and to permit only what is relevant to be disclosed.470 If that is unfeasible, the need to safeguard an "innocent” man from aspersions contained in a confidential report must give way to the right of another innocent to protect himself against secret charges that may deprive him of his livelihood“71 or stigmatize him for life. 472

When it is a Senator McCarthy who would broadcast unjust aspersions to the world, protection of an innocent man is not so easy. Yet Congress can and should deal with its irresponsible headline hunters. To resort to unlimited withholding of all confidential reports in order to avoid occasional irresponsibility is to embrace a cure that is worse than the disease. In any event, protection of a citizen against congressional excesses was not left to the executive branch, but to the courts. 973 The argument that disclosure to Congress may prejudice law enforcement may partially be met by submission of investigative reports for confidential treatment by Congress. For years FBI reports were delivered to Senator McCarran and so treated.*74 If Congress concludes that the public interest will be better served by publicity than by enforcement proceedings, that choice cannot be barred to the branch that wrote the law which the executive branch would enforce. There remains the alleged prejudice to the "national defense.” The old black magic of those words has been drained of its potency now that it is clear that not even "military secrets" enjoy absolute privilege in a private litigation. 476

(b) Statutory Assurances of Confidential Treatment. To encourage disclosure of private data for administrative purposes, 476

467 See text accompanying note 438 supra.
468 Jencks v. United States, 353 U.S. 657 (1957).
469 360 U.S. 474 (1959).
170 Cj. note 337 supra.
471 Grecne v, McElroy, 360 U.S. 474 (1959).
172 Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950).

473 Scc tcxt accompanying notes 272-74 supra and text accompanying notes 582-84 infra.

474 Sec note 460 supra.
476 Sec text accompanying note 412 supra.
470 8 WICMORE $ 2377, at 761 (3d ed. 1940).




certain statutes provide for confidential treatment as, for example, for income tax returns, trade secrets, and patent applications.977 These are often not air-tight assurances; the income tax statute provides for inspection upon the order of the President under regulations of the Secretary of the Trcasury; the Patent Act makes patent applications available in "such special circumstances as may be determined by thc Commissioner" of Patents. There might be no occasion to examinc such statutes in the frame of disclosure to Congress, for it can expressly provide for inspection by its committees, as it has in the case of income tax returns, 478 but for an incident involving a comparable statute upon which President Theodore Roosevelt relied in withholding information from Congress—the Act of 1903, which created a Commissioner of Corporations who was “required to report to the President, who is responsible for making public so much of the information collected for him as he (the President) sees fit."479 It strains the legislative intention to attribute to Congress a design to permit withholding from itself because it authorized withholding from the “public."'480

A number of courts have held that statutes restricting the use of confidential information do not deprive the courts of access for purposes of administering justice. 481 And as one said on the issue of “secrecy," "we are confident that it will as wholeheartedly be respected and as sedulously preserved by the juvenile court as it will be by the officers of the welfare department."482 Here, as in the case of “informers" who likewise rely on nondisclosure of their identity, there is need for "balancing the public interest in protecting the flow

177 INT. Rev. CODE OF 1954 $ 6103, as amended, 78 Stat. 844 (1964); 38 Stat. 717 (1914), 15 U.S.C. $ 46() (1958) (trade secrets); 35 U.S.C. $ 122 (1958) (patent applications).

178 INT. REV. CODE OF 1954 § 6103(d).
479 Att'y Gen. Mcmo. 49. Scc also id. at 17-18; 32 Stat. 828 (1903).

180 Earlier I thought that. Senator Clark's remark to Roosevelt, “ 'if the papers were of such a nature that they should not be made public the committee was ready to cncorse (his) views,'” Atty Gen. Memo. 17, could bc regarded as a Senatorial construction of the statute as authorizing a withholding from the Congress. But upon further study I concluded that this was one of many expressions of comity rather than a statutory interprctation.;

The office of Defense Mobilization makes available to congressional committees "confidential information which it obtains for purposes of approving rapid amortiza. tion of cmergency facilitics." Kramer & Marcusc 657.

481 Boeing Airplane Co. v. Coggeshall, 280 F.2d 654, 662 (D.C. Cir. 1960) ("The secrecy imposed by statute on these documents does not provide immunity from subpocna duces tecum"); Bell v. Bankers Life & Cas, Co., 327 III. App. 321, 64 NE.2d 204 (1945). Cf. Blair v. Oesturlcin Mach. Co., 275 U.S. 220, 227 (1927); Maryland Cas. Co. v. Clintwood Bank, Inc., 155 Va. 181, 193, 154 S.E. 492, 496 (1930); State v. Church, 35 Wash. 2d 170, 175, 211 P.2d 701 703-04 (1949) (even though use in a criminal prosecution would make the information public); State ex rel. Haugland v. Smythe, 25 Wash. 2d 161, 168-69, 169 P.2d 706, 710 (1946).

482 Id. at 169, 169 P.2d at 710-11, See text accompanying notes 417-18 supra.



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of information against the individual's right to prepare his de:sensc." Statutory assurances which cannot bar the courts jest they imperde: the administration of justice, and which were designer by the legislature merely to safeguard against prying Isy incumbers of the public, nccd not be construed to deny access to the legislaturc. And there is no morc ncccssity to read into statutos which expressly bar production in the courts** a congressional intention to bar its own access.

In leaving the recognized categories of evidentiary privilege, it bears emphasis that

The testimonial privileges ... of the common law have seen a con-
tinuing shrinkagc. ... Instcad of crccting barricrs to what may be
relevant matcrial, thc trend of the law is to regard the ascertainment

of truth its highest duty and often overriding concern.5A6 Great as is the interest of the state in doing justice to the individual, there is an even greater interest in the maintenance of an executive branch that is free from corruption and waste, that complies with requirements of law, and that functions efficiently to meet the everchanging complexities of our times, for on this depends the welfare and security of the nation.180 And no surer instrument for securing those objectives has yet been devised than legislative investigation. 487

4. The "Housekeeping” Privilege

Insofar as the "housekeeping" privilege rested on the so-called "housekeeping” statute which authorized department heads to make regulations for the custody and use of departmental papers and records, 188 it has been decently interred by a 1958 amendment which states that said statute "does not authorize withholding information from the public."480

It stands no better in terms of "evidentiary privilege," for Judge Maris had earlier declared for the Third Circuit that the Air Force was not "entitled to the absolute 'housekeeping' privilege 1965)

483 See note 438 supra.
484 For illustrations, see 8 WICMORE $ 2377, at 783.

185 Henrik v. Teegarden, 23 F.R.D. 173, 177 (S.D.N.Y. 1959). Professor McCormick had earlier stated that "the commentators who take a wide view, whether from the bench, the bar, or the schools, secm generally to advocaic a narrowing of the field of privilege." McCormick, The Scope of Privilege in the Law of Evidence, 16 TEXAS L. REV. 447, 469 (1938).

480 TAYLOR 98. "Civil liberties . . . imply the existence of an organized society maintaining public order without which liberty itself would be lost ...." Cox v. New Hampshire, 312 U.S. 569, 574 (1941).

487 Scc note 32 supra.
188 17 Stat. 283 (1875), as amended, 5 U.S.C. $ 22 (1958).

489 72 Stat. 547 (1958), 5 U.S.C. $ 22 (1958). For more extended discussion see Schwartz 18-19.



which it asscrts."400 The mere fact that a document or record is in official custody is therefore not without more sufficient to shield it from production.

C. Privilege to Withhold Interdepartmental Communications from


While the courts were shrinking the scope of executive priviloge in private litigation, the executive branch began staking out its boldest claims to withold information from Congress, chiefly to defend against Senator McCarthy's brutal assaults.“"The provocation was great, but it is not unfair to say that executive "selfdefense" before long caught up with the McCarthean excesses. The resulting claim of privilege to withhold from Congress "conversations and communications” between employees of the executive branch is therefore of quite recent origin—the 1954 Eisenhower directive *02 which eventuated when President Eisenhower finally turned on Senator McCarthy.193 The directive was rested on the

490 Reynolds v. United States, 192 F.2d 987, 994 (3d Cir. 1951). In reversing, the Supreme Court confined itself to the "military sccret” aspect of the opinion. Sce text accompanying notes 412-16 supra. On the "housckccping" branch of the casc, Judge Maris continues to be cited. United States v. Certain Parcels of Land, 15 F.R.D. 224, 230 (S.D. Cal. 1954). Sce also i Davis, ADMINISTRATIVE LAW TREATISE 591 (1958). The claim of "housekeeping" privilege had carlier been rejected in Bank Line v. United States, 76 F. Supp. 801 (S.D.N.Y. 1948).

101 Professor Wade remarks of the English practice that owing "to the official tendency to push more and morc matters into the protected sccrct arca, Crown privi. lcgc grow a scw ycars ago into an abusc ...." WADE, TOWARDS ADMINISTRATIVE JUSTICE 22 (1963).

102 Reprinted in Rogers 1009. "So astute a commentator as Wigmore ... completely overlooks it," Bishop 487 n.45, but I would add, becausc prior to his demise in 1942 this "candid interchange" claim apparently had never been advanced against Congress. At least the indefatigable compiler of "authoritics" for Attorncy General Rogers did not dredge up even one example that antedates thc 1954 directive. I would put to one side the communications between the President and a Cabinet member. See note 381 supra.

But Wigmore did notice that several precedents had declared an "cvidentiary" privilege "for communications between officials," 8 WICMORE $ 2378, at 781-82 (3d ed. 1940), citing among others Smith v. East India Co., 1 Phill. 50, 11 L.J. Ch. 71, 72 (1842). The East India Company had "governmental" duties and the communications of its directors with royal commissioners were held privileged in order not "to restrain the freedom of the communications and to render them more cautious, guarded and reserved." This was high-level communication. See also United States v. Six Lots of Ground, 1 Woods 234, 236 (1872) (correspondence betwcen the attorney general and a district attorney as to dismissing a writ of error, held confidential). But note that Wigmore sums up that the scope of the privilege beyond secrets "in the military or international scnse is by no means clearly defined; and, furthermore, that it has not become a matter of prcccdent or even of debate in more than a few jurisdictions," and that "ordinarily there are (not) any matters of fact, in the possession of officials, concerning solely the internal affairs of public businesses, civil or military, which ought to be privileged from disclosure ...." 8 WIGMORE 788-89.

193 The worm was long in turning. For details of McCarthy's mounting effrontery see BARTI 24-26, 40-65, 83, 154-55 and TAYLOR 87, 112-35, 266-69.



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allcgcd need that "employees of the Exccutive Branch be in a position to be completely candid in advising with cach other on official matters" in the interest of "csficient administration."'** The difficulty with his vicw was unwittingly disclosed by Acting Director Saccio of the International Cooperation Administration: “if ICA wunlod to apply thc 'cxccutive privilcgc' GAO would not scc one thing becausc practically every document in our agency has an opinion or a picce of advice."406 It was not long in dawning on harried administrators that here was a beautiful, new invitation to withholding. What had oncc been the exception soon hardened, in the words of a friend of the privilege, Senator Morse, into a “uniform practice," a "blanket policy."400 So, the Department of the Interior advised a House Committee that while the sought for documents "did not contain any information which the Department would be unwilling to make available to Congress, it, nevertheless, considered itself bound to "honor the principle which has been followed from the beginning of our Government,' "497 i.e., to withhold. Thus a claim born of desperation in 1954 had ripened by 1956 into a time-honored "principle,” which like the Juggernaut rode over a request for information that confessedly there was no reason to withhold.

The “principle,” it needs to be said, survived in the Kennedy administration; the one instance in which President Kennedy concurred in a claim of privilege rested on this need for "candid" interchange.108 But the President emphasized that the principle "cannot be automatically applied to every request for information. Each case must be judged on its merits.''498 This in itself constitutes a great change from prior practices as will now appear.

494 See Rogers 1009. "Such communications might deal with personnel matters, budgetary information, advice given by a subordinate official to a superior, consultations among associates or exchanges of information among different departmonts." Carrow 185.

In Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Ct. CI. 1958), Mr. Justice Reed, sitting by designation, said that "confidential intra-agency advisory opinions . . . are privileged ... but not absolutely." Tbc document sought "was part of the reasoning process” whereby "an administrator (was) reaching a decision" and the court concluded that it would not "probe the mental process" involved. Id. at 946. Morcover, said the court, the record did not show the “need for examination of the privileged document." Id. at 947.

406 Quoted Kramer & Marcuse 852. (Emphasis supplied by author.)

406 Id. at 851-52. A number of withholdings from Congress of interdı vartmental communications will be found in id. at 647-48, 654-56, 658, 660, 664, 667, 842.

107 Id. at 660.

408 A Scnatc subcommittee, reviewing military cold war "education and specch review policies, sought to obtain testimony from a Defense Department official about the specific speech revisions he had made. Secretary of Defense McNamara declined to furnish the information, assuming responsibility for the speech review and President Kennedy concurred. Gov't Info. Memo. 43-44.

409 Id. at 44.

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