UNITED STATED DEPARTMENT OF JUSTICE
Office of Information Law and Policy
Washinton, D.C. 20530

May 29, 1980

Michael N. Sohn, Esq.
General Counsel
Federal Trade Commission
Washington, D. C. 20580

Dear Mr. Sohn:

This is in response to your letters of February 21, 1980 and April 2, 1980 requesting a legal opinion on certain issues pertaining to the Freedom of Information Act (FOIA) in the light of the opinion of the Court of Appeals for the D.C. Circuit in Murphy v. Department of the Army, 613 F.2d 1151 (D.C. Cir. 1979).

As stated in your February 21st letter, the two issues you present are:

"(1) Whether, under the Murphy decision, the Commission may continue to refuse requests from individual Congressmen not acting on behalf of a committee or subcommittee, to the extent that the information requested is exempt from mandatory disclosure under the FOIA:

(2) If not, what criteria should be applied to requests from members of Congress to determine whether they are being made in an 'official capacity.'"

As previously indicated in our telephone advice, the answer to question (1) is basically affirmative. Therefore, question (2) need not be dealt with except to the limited extent it is touched upon under the last heading in the following discussion. The discussion is set forth under five headings as indicated in the outline immediately below:

1. Dissemination of and participation in this letter.

2. The Murphy case: facts, issues, and decision.

3. The Murphy case: opinion and its relation to the decision.

4. FOIA subsection (c) in relation to FOIA requests for exempt matter by an individual member of Congress.

5. Policy favoring releases of exempt matter to individual members of Congress.

1. Since the problems of FOIA interpretation and policy involved in your request are not only of direct interest to the Commission but also are important to other federal agencies, this letter will be distributed to federal agencies and to the public as a statement, like others issued by this Office, of the Department's position on the matters of FOIA law and policy involved. In addition, because the ramifications of the present subject pertain significantly to the relationships among the three branches of the federal government, and to a lesser extent to the relationships of federal agencies with state, local and foreign governments, this letter has been reviewed within this Department by our Office of Legal Counsel, Office of Legislative Affairs, and Civil Division, all of which concur with the general substance of the positions set forth herein.

2. The matters in the Murphy case which trouble you arise from the opinion written to explain it rather than from the decision itself. Putting aside for the moment the opinion, the actual decision was predictable and clearly correct. The facts and issues before the court and the result which it reached were briefly as follows. A private person who was not a member of Congress sued the Army under FOIA to compel it to disclose to him an advisory legal opinion from its general counsel. The Army's defense was that the document was properly withheld under FOIA Exemption 5. The plaintiff sought to overcome this by pointing to the admitted fact that the Army, before it denied him access, had voluntarily given a copy of the same document to a Congressman whose district had an interest in the subject of the document. Plaintiff contended that this disclosure to the Congressman by the Army was a "waiver" of the exemption, barring the Army from using the exemption to deny his request for the document. This contention predictably and properly failed. But the court was not faced with a question like the one you pose of whether it should sustain an agency denial of a FOIA request made by an individual member of Congress. Thus, the decision itself is not a true precedent either way on the question whether an individual member of Congress, as such, may have the legal right to compel an agency, through a FOIA request and a FOIA suit, to disclose to him records which are exempt from compulsory disclosure to other requesters.

3. We turn now from the Murphy decision to the Murphy opinion. Although as just discussed, the actual decision in the Murphy case does not render it a precedent on the question you raise, the court explained its decision by referring to FOIA subsection (c) in terms which seem to point to a negative answer to your question. Thus, the opinion must be considered in relation to your question, especially to determine whether it was essential to the result in the case. Subsection (c) of FOIA provides in pertinent part that FOIA "is not authority to withhold information from Congress." 5 U.S.C. 552(c) (second sentence). We believe that the following analysis will show that although the opinion in the Murphy case clearly relied upon subsection (c) to support its result, that subsection was not indispensable to the decision.

It is important to emphasize that even if subsection (c) had never been enacted as a part of FOIA, the result in Murphy should have been, and probably would have been, the same, because of the well-established principle that FOIA exemptions are discretionary.1 If discretion means anything in this context, an agency, in acting upon a request for access to exempt matter, has some substantial discretion whether to grant the request, unless such release is prohibited by another statute, rule, etc. Of course an agency's discretion whether to invoke an available exemption in acting on a FOIA request is not unlimited, but the limitations on such discretion are chiefly to be found elsewhere in federal law, rather than in the provisions of FOIA.

The basic legal limitation upon agency discretion in acting upon successive requests for the same exempt records is the familiar principle of abuse of discretion. Thus, as an obvious illustration, an agency cannot give a reporter for one newspaper a copy of an exempt document in the morning and deny the same document to a reporter for another newspaper in the afternoon, at least absent very extraordinary circumstances that are difficult to envisage. Similarly, there are situations in which denying access to an exempt document sought by one side of a litigated dispute, after having voluntarily given the opposite side a copy of it, may involve unfairness amounting to an abuse of discretion.2 Such examples (sometimes also characterized as arbitrary and capricious, discriminatory, or unreasonable) help to define the meaning of an abuse of discretion when an agency gives one person discretionary access to an exempt document but denies another person access to it.

Absent any such abuse of discretion, however, agencies are legally authorized to exercise their discretion in granting or denying an exempt document and are not subject to any absolute requirement that discretionary access to a particular person means that access must be granted to all persons. Absent an abuse of discretion, it is permissible as a matter of both law and policy to grant discretionary access to an exempt document to a particular person and not to another. 3

Illustrations of such types of situations can readily be framed on the basis of more than a decade of our experience in informally counseling federal agencies on a great variety of such problems. To begin with an example which was judicially reviewed, the Court of Appeals for the District of Columbia Circuit upheld per curiam a denial by this Department of a request for an exempt document (the FBI investigatory report on Sirhan Sirhan) after the Department had voluntarily given the same document to another person.4 Prior to denying the plaintiff's request for access to this report, the Department had voluntarily given a copy of it to the local county prosecutor who was preparing for Sirhan's murder trial. In addition, through a chain of events in which this Department played no part, the report had become available to Sirhan's defense counsel and to the author of a book about Sirhan. Despite these facts, the Department was upheld in asserting the exemption in denying plaintiff's request. It should be emphasized that FOIA contains no provision referring to state and local law enforcement personnel, corresponding to subsection (c)'s reference to "Congress", which might be read to suggest that the local prosecutor was legally entitled to an exempt FBI investigative report. The Department's release to the prosecutor was clearly discretionary, and its subsequent withholding from a random requester was not an abuse of discretion. In exercising its discretion differently as to the prosecutor and the plaintiff, the Department was clearly reasonable, for the release was in furtherance of the public policy of federal-state cooperation in law enforcement, which is a necessary and recognized feature of our federal system, and which would not have been furthered by a release to the plaintiff.

The general scope of the discretion involved will be even clearer with a few additional illustrations of types of situations in which an exempt document might properly be made available voluntarily to one person without thereby "waiving" the exemption as to the world. Thus, an agency record containing detailed information on the hazardous characteristics of a new chemical or drug might, depending on the circumstances, be covered by one or more of several FOIA exemptions.5 The voluntary release by an agency of such a document to the persons responsible for public protection from dangerous chemicals and drugs in a friendly foreign government, or with similar functions in a state or local government, or even to a private physician treating a patient who had been exposed to the chemical or drug, would neither legally nor rationally be sufficient to require release to a random requester.6

Another type of situation is where an exempt internal deliberative document advising on a complex and controversial problem is voluntarily made available to a professor or similar expert with specialized knowledge or experience on the subject, for the purpose of trying to make sure that the document's advice to the decision-maker is the best that can be furnished. In such a situation written advice from the professor would often be exempt under the Wu doctrine,7 and it would be anomolous if the price of obtaining such additional advice were the automatic destruction of the exempt status of the internally generated advice. The facts in the Murphy case itself afford another example of discretionary release of a deliberative document, although for a different public purpose, i.e., the maintenance of interbranch comity in the federal government.

Finally, if further illustrations of types of situations are needed in which differential exercise of discretion is appropriate, we may note the case of agency records that are properly classified for defense reasons and covered by FOIA Exemption One. There can be no doubt that these records may sometimes be voluntarily released to, for example, a defense equipment manufacturer in aid of defense activities, and subsequently may be denied to other requesters. The manufacturer certainly cannot legally compel such access. Nor does FOIA contain any explicit provision, like subsection (c), which can be construed as authorization for this difference in treatment. The answer is that no such provision is needed, since the exemptions are discretionary. Therefore a valid exercise of that discretion does not waive the applicable exemptions so long as the document itself remains exempt and the agency does not abuse its discretion.

These conclusions about the scope and limitations upon an agency's discretion to release an exempt document to one person and not another are fully and clearly consistent with the central openness objectives of FOIA, and also with the egalitarian elements within its structure. As to the first, a decade of government-wide experience in applying the Act to tens or hundreds of thousands of requests, coupled with over a thousand decided FOIA lawsuits' with as many still pending, are convincing evidence that there is often serious uncertainty, likely to breed costly and protracted controversy, whether the records sought by the requester are exempt. To promote the Act's openness objectives and minimize the burdens of administration and litigation, agencies have been encouraged by this Department to make discretionary releases of exempt or arguably exempt matter where granting the particular request will not harm legitimate public or private interests.8 Moreover, some advocates of openness have urged that agencies release records to a FOIA requester without even considering whether the document is exempt, if the agency perceives no practical danger to a legitimate public or private interest in granting the particular request. This practice, in appropriate circumstances, tends to support both openness and economical administration. But in cautious and precedent-conscious bureaucracies, such release practices will be substantially discouraged if agencies believe that particular releases that seem harmless or even desirable in response to a particular request will carry a penalty in the loss of such discretion as would otherwise exist as to possible subsequent requests in different and unforeseeable circumstances seeking the same or similar documents.

Nor does the egalitarian element in FOIA negate the discretion discussed above. That element found its expression in one of the major reforms in the 1966 enactment of FOIA, namely, the substitution of "any person" as the requester,9 in lieu of the concept of FOIA's predecessor, the public information section of the 1946 Administrative Procedure Act,10 which gave a qualified right of access to records only to "persons properly and directly concerned." This change means that statutory entitlement to access under FOIA is generally available to all persons. Statutory entitlement exists as to all records that are not exempt. Moreover, whether the records are exempt under FOIA depends generally on the factors expressed in the several exemptions, which pertain to the records themselves, such as their nature, contents, origin, purpose, function, or effects if disclosed, and do not pertain to the identity of the particular requester.11 But if the records are exempt under the terms of the statute, the prefatory language of the exemption subsection confirms the agency's discretion in acting on requests for exempt matter. That prefatory language, in subsection (b), states that "This section [i.e., FOIA, including the "any person" provision in subsection (a)(3),] does not apply to matters that are [exempt]". This of course does not mean that there are no legal limits on unequal treatment of different persons in releasing and withholding exempt matter. But it means that where exempt matter is concerned, such limits are those which prevent abuses of discretion, as previously discussed.

In view of the foregoing considerations, it is clear that Murphy's discussion of FOIA subsection (c) does not amount to an indispensable rationale for supporting the Murphy decision sustaining the Army's differential treatment of the Congressman and the plaintiff in releasing the exempt document to the former and withholding it from the latter. But it is also clear that subsection (c) does substantially support the Murphy decision, by underscoring the reasonableness of the discretionary preference given to the Congressman. While such preferences are not legally enforceable by an individual Congressman for the reasons discussed under heading 4 below, there is an important policy supporting them, as discussed under heading 5 below.

4. Having considered the Murphy case which stimulated your inquiry both as to the actual decision and as to the relation of the opinion to the decision, we turn directly to the bearing of FOIA subsection (c) on your question whether you can continue to deny FOIA requests for records exempt under FOIA even if the requester happens to be an individual member of Congress not acting as the chairman or spokesman for a congressional committee or subcommittee. Our affirmative answer is based on at least the following considerations:

(a) The plain language of subsection (c) is that FOIA is not authority to withhold information "from Congress." The word "Congress" presumably means Congress. Congress is defined in Art. I, Sec. 1 of the Constitution to "consist of a Senate and a House of Representatives." Congress is thus an organized institution which is one of the three branches of the federal government. To equate each individual member with the institution, merely on the basis of his membership in it, would seem equivalent to treating a legal reference to a "board of directors" as equally referring to each individual director, or a reference to the Army as also referring to each soldier. Generally, whether an individual director, soldier, or Congressman may properly be treated as the equivalent of the institution to which he belongs depends on whether the institution has authorized or recognized him as its agent for the purposes in question. Since Congress customarily acts through its two houses, the leaders of those houses, its various committees and subcommittees and the chairmen thereof, and not through individual members as such, the ordinary meaning of the language of subsection (c) would not include each individual member.

(b) Since FOIA was enacted, there have, of course, been many occasions in which agencies have been asked to provide records both by congressional committees and subcommittees and by individual members of Congress. During this period, the Department has from time to time responded to agencies seeking informal advice on the relation of subsection (c) to such requests. In responding to such requests, we have seldom encountered doubts, at least prior to the Murphy opinion, that subsection (c) means basically that an agency cannot use a FOIA exemption to deny access to a record when sought by a congressional committee or subcommittee. In other words, the provision chiefly serves the purpose of making clear that the exemptions in the Act were not intended to impair Congress's power to investigate. This is the same general purpose as is served by the corresponding provision in the other major statute regulating access to records of federal agencies, the Privacy Act.12 The Privacy Act provision safeguarding this congressional power is more explicit and detailed in its wording than the word "Congress" in the earlier enacted FOIA provision "either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee" -- but there is little reason to doubt that both provisions are essentially similar in purpose, meaning and effect. Moreover, since FOIA also applies to all records covered by the Privacy Act, the limitations to houses, committees, and subcommittees of Congress in the provision just quoted would be rendered wholly ineffective and meaningless if "Congress" in FOIA subsection (c) is read, in the context of your question, to refer to each individual member.

(c) The requesters and plaintiffs in one of the leading FOIA cases, which arose in the District of Columbia Circuit and subsequently was considered both by the Supreme Court and by Congress, were in fact individual members of Congress. EPA v. Mink, 410 U.S. 73 (1973). They sued for access to agency records withheld from them as exempt, not only as "persons" under FOIA subsection (a)(3), but also as members of Congress. As the Court of Appeals noted, the contention that plaintiffs were entitled to access to exempt matter under FOIA in their capacity as members of Congress was rejected by the District Court.13 Thereafter the District Court, the Court of Appeals, and the Supreme Court successively dealt with the dispute as a normal FOIA case, with the decision depending upon the extent to which the records withheld from the requesters might fall under certain exemptions, and upon the judicial procedures to be used in resolving such issues. Still later, Congress enacted changes in FOIA that were expressly designed to overturn certain features of the Supreme Court's decision in Mink as part of its 1974 FOIA amendments,14 but, like the Supreme Court and the Court of Appeals, left undisturbed the District Court's ruling that even though the requesters sought access as members of the Congress, their legal entitlement under FOIA depended on whether the requested records were exempt. The history of this celebrated controversy is a strong indication that both Congress and the higher courts had no quarrel with the District Court's conclusion that an individual member of Congress, as such, is not legally entitled to records that are exempt under FOIA. An opposite conclusion would have rendered unnecessary a great deal of analysis and effort at all levels of the judicial system.

(d) An opposite view on the question you raise could lead to results which might be deemed unreasonable or unacceptable. If anyone of the 531 members of our national legislature in his capacity as such had the power to compel access to exempt agency records under FOIA, the effect might be not only to frustrate the statutory scheme but also to release items of information which most members of Congress might wish to be protected and which they thought were protected when they enacted FOIA's exemptions. Modern history suggests more than one situation in which highly sensitive records, similar to some belonging to the FBI and CIA, could not be withheld if such a view were the law. Moreover, if such were the law, trade secrets and other exempt private sector information in agency records would no longer be protectible if a single legislator were to exercise such power. Indeed, upon such a reading of FOIA, each member of Congress would have a broader power to compel agencies to produce records, with speedy judicial enforcement, than now exists through the subpoena power of a congressional committee, since the latter applies only to matters within the committee's jurisdiction, while the former would cover the entire gamut of federal activities. That such results follow from an opposite view of the law substantially supports the position on your question taken herein.

(e) Finally, the Murphy opinion itself contains indications that it was not intended to be read or applied as calling for a negative answer to the question which you present. Despite the discussion which concerns you, the opinion states, "What is at issue is the construction to be given to that provision of the law [i.e., subsection (c)] which safeguards congressional access to executive information notwithstanding the FOIA exemptions and the relation of that provision to the question of when confidentiality is waived or destroyed by disclosure to a third party." (Slip opinion at p. 15, emphasis supplied.) And, when the opinion discusses simply subsection (c) by itself, without considering its relation either to the issue presented by the plaintiff's waiver arguments or to the question you have presented, as it does at footnote 12, the opinion sets forth the legislative history and the meaning of subsection (c) in terms quite consistent with the position taken in this letter. Indeed, the quotation in that footnote from the House Report on subsection (c) --"Members of the Congress have all of the rights of access guaranteed to 'any person' by [the FOIA], and the Congress has additional rights of access to all Government information which it deems necessary to carry out its functions." --is strong additional support for the position herein as to the bearing of subsection (c) on your question. Accordingly, if the question you present were to be litigated on proper facts in a FOIA suit by a member of Congress seeking admittedly exempt records in reliance on the discussion in Murphy which concerns you, it is quite likely that such discussion would be placed in the context in which it was written, i.e., the "relation of [subsection (c)] to the question of when confidentiality is waived or destroyed by disclosure to a third party," and that the plaintiff's reliance on his status as a member to give him compulsory access would have no more legal effect than it did in the Mink case.15

5. Turning from the legal to the policy aspects of requests for exempt materials from individual members of Congress, nothing in the foregoing discussion of the law should be taken to suggest that agencies should invoke exemptions against requests from members of Congress without regard to the Congressional status of the requester. To the contrary, this Department recognizes the practical importance of maintaining proper flows of information not only to Congress and its committees and subcommittees but also to individual members. A government organized on the principle of separation of powers requires a spirit of comity for its effective operation, and the effectiveness of governmental institutions calls for flows of information to support not only institutional knowledge but also the knowledge of the individuals who compose the institution.

Therefore, agencies should give due weight and sympathetic consideration to an individual member's requests for information where he may have a need to know things which fall outside the public's right to know under FOIA. Such a need may arise in aid of any function which the individual member performs in his so-called official capacity, as opposed to information sought for purely personal reasons. Such functions include, for example, constituent service, developing and deciding upon proposed legislation, and participating in the work of committees or subcommittees to which he may belong or before which he may appear. An agency should not lightly deny a request for exempt matter from a member of Congress in aid of such a function, and if the agency is of the view that one or more of the protectible interests reflected in the FOIA exemptions outweigh the member's need in a particular case, this Office should be consulted at an appropriate stage.16

Sincerely,

Robert L. Saloscnin
Director

________________________________________

1 For a recent reaffirmation of this proposition, see Chrysler Corp. v. Brown, 441 U.S. 281 (3d Cir. 1979).

2 Cf. North Dakota v. Andrus, 581 F.2d 177 (8th Cir. 1978).

3 The discussion herein of agency discretion to release or withhold exempt documents is not intended to apply to documents the disclosure of which is prohibited by law.

4 Committee to Investigate Assassinations, Inc. v. Dept. of Justice, No. 3651-70 (D.C. Cir. Oct. 24, 1973).

5 If the information was obtained from the manufacturer and is commercially valuable, Exemption 4 would presumably apply; if compiled in the course of a law enforcement investigation concerned with possible violation of health, safety, or environmental laws, some parts of Exemption 7 might well apply; if the document is inextricably intertwined with agency deliberations on what to do about the apparent hazards, Exemption 5 should be pertinent; or if the chemical has defense significance and appropriate standards and procedures have been adhered to, Exemption 1 might apply.

6 Obviously, release to a random requester might impair some of the protectible interests adverted to in the immediately preceding footnote.

7 Wu v. National Endowment for Humanities, 460 F.2d 1030 (5th Cir. 1972).

8This encouragement is contained in Attorney General Bell's widely circulated letter to all agencies dated May 5, 1977, and also has long been an important theme in both training and counseling situations.

9 5 U.S.C. 552(a)(3), last two words.

10 Section 3 of P.L. 404, 79th Congress, approved June 11, 1946.

11 This statement is subject to a few limited exceptions, deriving from the exemptions themselves, particularly with regard to Exemptions 4 and 6. See, e.g., the Conference Report on the 1974 FOIA amendments, indicating that matter under the privacy exemptions (6 and 7(C)) as regards requesters generally is not exempt if the requester is the person to whom the information pertains. Senate Report 93-1200 at p. 13. A similar result might apply to Exemption 4 material if submitted and requested by a business whose records were burned after copies were furnished to the agency. And see Getman v. NLRB, 450 F.2d 670 (D.C. Cir. 1971) and Wine Hobby USA, Inc. v. United States BATF, 502 F.2d 133 (3d Cir. 1974).

12 5 U.S.C. 552a(b)(9)

13 See Mink v. EPA, 464 F.2d 742 at 744 (D.C. Cir. 1971).

14 Conference Report on the 1974 FOIA Amendments, S. Rep. 93-1200 at 9, 11-12.

15 In reaching the foregoing conclusions, we have also considered the references to Murphy in footnote 16 of another opinion of the Court of Appeals for the District of Columbia Circuit, FTC v. Owens-Corning Fiberglas Corp., No. 79-1167 (March 13, 1980), slip opinion at pages 15-16, together with the related discussion in Judge Wald's concurring and dissenting opinion in that case. The case was a suit to enforce an FTC subpoena, not a FOIA case, and we do not believe that it calls for changes in our conclusions herein.

16 See 28 CFR § 0.29a(b).

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