1306 UCLA LAW REVIEW [Vol. 12: 1287 of the informer's identity must give way if that is "essential. .. to a fair determination of a cause"; 407 and that pronouncement is strengthened by the constitutional implications of the Jencks case108 and of Greene 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.170 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 livelihood471 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.473 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. 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.175 474 (b) Statutory Assurances of Confidential Treatment. To encourage disclosure of private data for administrative purposes, 467 See text accompanying note 438 supra. infra. 468 Jencks v. United States, 353 U.S. 657 (1957). 469 360 U.S. 474 (1959). 470 Cf. note 337 supra. 471 Greene v. McElroy, 360 U.S. 474 (1959). 472 Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950). 476 473 See text accompanying notes 272-74 supra and text accompanying notes 582-84 474 See note 460 supra. 475 See text accompanying note 412 supra. 1965] WITHHOLDING INFORMATION 1307 certain statutes provide for confidential treatment as, for example, for income tax returns, trade secrets, and patent applications.** 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 Treasury; the Patent Act makes patent applications available in "such special circumstances as may be determined by the Commissioner" of Patents. There might be no occasion to examine 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,178 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.181 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 477 INT. REV. CODE OF 1954 § 6103, as amended, 78 Stat. 844 (1964); 38 Stat. 717 (1914), 15 U.S.C. § 46(f) (1958) (trade secrets); 35 U.S.C. § 122 (1958) (patent applications). 478 INT. REV. CODE OF 1954 § 6103(d). 479 Att'y Gen. Memo. 49. See also id. at 17-18; 32 Stat. 828 (1903). 480 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 endorse [his] views,'" Att'y Gen. Memo. 17, could be 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 interpretation. The office of Defense Mobilization makes available to congressional committees "confidential information which it obtains for purposes of approving rapid amortization of emergency facilities." Kramer & Marcuse 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 Ill. App. 321, 64 N.E.2d 204 (1945). Cf. Blair v. Oesterlein 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. 1308 UCLA LAW REVIEW [Vol. 12: 1287 of information against the individual's right to prepare his de fense, 43 Statutory assurances which cannot bar the courts lest they impede the administration of justice, and which were designed by the legislature merely to safeguard against prying by members of the public, need not be construed to deny access to the legisla ture. And there is no more necessity to read into statutes 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- 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 483 See note 438 supra. 484 For illustrations, see 8 WIGMORE § 2377, at 783. 485 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, seem generally to advocate 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 See note 32 supra. 488 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. 19651 WITHHOLDING INFORMATION 1309 which it asserts.' 490 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 Congress While the courts were shrinking the scope of executive privilege 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.191 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 directive102 which eventuated when President Eisenhower finally turned on Senator McCarthy.493 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 secret" aspect of the opinion. See text accompanying notes 412-16 supra. On the "housekeeping" branch of the case, Judge Maris continues to be cited. United States v. Certain Parcels of Land, 15 F.R.D. 224, 230 (S.D. Cal. 1954). See also DAVIS, ADMINISTRATIVE LAW TREATISE 591 (1958). The claim of "housekeeping" privilege had earlier been rejected in Bank Line v. United States, 76 F. Supp. 801 (S.D.N.Y. 1948). 401 Professor Wade remarks of the English practice that owing "to the official tendency to push more and more matters into the protected secret arca, Crown privilege grew a few years ago into an abuse. . . ." WADE, TOWARDS ADMINISTRATIVE JUSTICE 22 (1963). 402 Reprinted in Rogers 1009. “So astute a commentator as Wigmore . . . completely overlooks it," Bishop 487 n.45, but I would add, because prior to his demise in 1942 this "candid interchange" claim apparently had never been advanced against Congress. At least the indefatigable compiler of "authorities" for Attorney General Rogers did not dredge up even one example that antedates the 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 "evidentiary" privilege "for communications between officials," 8 WIGMORE § 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 between 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 sense is by no means clearly defined; and, furthermore, that it has not become a matter of precedent 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. 493 The worm was long in turning. For details of McCarthy's mounting effrontery see BARTH 24-26, 40-65, 83, 154-55 and TAYLOR 87, 112-35, 266-69. 1310 UCLA LAW REVIEW [Vol. 12: 1287 alleged need that "employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters" in the interest of "efficient administration.""" The difficulty with his view was unwittingly disclosed by Acting Director Saccio of the International Cooperation Administration: "if ICA wanted to apply the 'cxecutive privilege' GAO would not see one thing because practically every document in our agency has an opinion or a piece of advice."495 It was not long in dawning on harried administrators that here was a beautiful, new invitation to withholding. What had once been the exception soon hardened, in the words of a friend of the privilege, Senator Morse, into a "uniform practice," a "blanket policy." 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,' "47 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. 408 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. But the President emphasized that the principle "cannot be automatically applied to every request for information. Each case must be judged on its merits." 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 departments." Carrow 185. In Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958), Mr. Justice Reed, sitting by designation, said that "confidential intra-agency advisory opinions . . . are privileged . . . but not absolutely." The 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. Moreover, said the court, the record did not show the "need for examination of the privileged document." Id. at 947. 495 Quoted Kramer & Marcuse 852. (Emphasis supplied by author.) 490 Id. at 851-52. A number of withholdings from Congress of interdepartmental communications will be found in id. at 647-48, 654-56, 658, 660, 664, 667, 842. 497 Id. at 660. 498 A Senate 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. |