People ofEnewetak v. Laird
4 ERC 1926
trusted, the Executive will hold complete sway
and by tose dixit make even the time of day
“top secret.”’ Certainly, the decision today will
upset the ‘‘workable formula,” at the heart of
the legislative scheme, “‘which encompasses,
balances, and protects all interests. yet places
emphasis on the fullest possible disclosure.” S.
Rep. No. 813, supra, at 3. The Executive
Branch nowhas carte blanche to insulate infurmation from public scrutiny whether or not
that information bears anydiscernible relation
to the interests sought to be protected by subsection (b)({t) of the Act. We should remember
the words of Madison:
“A popular government without popular
information or the means of acquiring it, ts
but a prologueto a farce or a tragedyor perhaps both. Knowledge will forever govern
ignorance: And a people who mean to be
their own Governors, must arm themselves
with the power knowledge gives.”
I would affirm the judgment bciow
APPENDIX
Sec. 552(b) and (c} of the Freedom ofInformation Act reads as follows:
(b) This section does not apply to matters
that are—
(1) specifically required by Executive order
to be kept secret in the interest of national de-
cial information obtained from a person and
privileged or confidential;
(5) inter-agency or intra-agency memo-
randumsorletters which would not be avail-
able by law to a party other than an agencyin
litigation with the agency;
(6) personnel and medical files and similar
files the disclosure of which would constitute a
clearly unwarranted invasion of personal pri-
vacy;
(7) investigatory files compiled for law en-
forcement purposes except to the extent available by law to a party other than an avency:
(8) contained in or related to examination,
operating, or conditton reports prepered by,
on behalf of, or for the use of an agencyresponsible for the regulation or supervision of
financial institutions; or
(9) geological and geophysical information
and data, including maps. concerning wells.
(c) This section does not authorize withholding of information or limit the availability
of records to the public, except as sperifically
stated in this section. This section is not authority to withhold information from Con-
gress.
407890
preset tn
fense or foreign policy;
(2) related solely to the internal personne!
rules and practices of an agency;
(3) specifically exempted from disclosure by
statute;
PEOPLE OF ENEWETAKv.
LAIRD
U.S. District Court
District of Hawaii
(4) trade secrets and commercial or Anan-
templates “‘excerpting”’ of some material. Referee-
ing what mayproperly be excerpted is part of the
judicial task. This is made obvious by & 552(b)(3)
which keeps secret “inter-agency or intra-agency
memorandums or letters which would not be available by lawto a party other than an agencyin litigation with the agency.” The bureaucrat who uses the
“secret” stamp obviously does not have the final say
as to what “memorandumsor letters” would be
available by law under the Fifth exception. for
§$552{a)(3) gives the District, Court) authority,
where agency records are alleged to be” imprope rly
withheld”
“determine the matter de novo.” the
“burden” bene en the agency “to sustain its ae-
tion.”” Hence § 552(b)03), behind which the execu-
tive agency seeks refuge here. establishes a policy
which is served by the tact -opinion distinction long
established in federal discovery. The question is
whether a private party would routinely be entitled
to disclosure through discovery of some or all of the
materia] sought to be excerpted. When the Court
answers that no such inquiry can be made under
$552(b)(1), it mukes a shambles of the disclosure
mechanism which Congress tried to create. To make
obvious the interplay of the nine excepuions tisted in
§ 552(b), as well as § 552(c), [ have attached them
as an Appendix to this dissent.
?Leuer to W. T. Barry, Aue. 4, 1822. 1X The
Writings of James Madison (Hunt ed. 1910) 103.
THE PEOPLE OF ENEWETAK, THE
COUNCIL OF ENEWETAR. by and
through IROIJ LORENZI JITIAM, ROI
JOHANNIS PETER, SMITE GIDEON,
Magistrate. HERTES JOHN. JOHN
ABRAHAM. and ISHMAEL JOUN. vy.
MELVIN R. LAIRD, Secretary of Defense.
ROBERT C. SEAMENS, JR.. secretary of
the Air Force, PHILIP N. WHITTAKER,
Assistant Secretary of the Air Force, VICE
ADMIRAL NOEL GAYLER. CINCPAC
Commander, LT. GENERAL CAROLL If.
DUNN, Director, Defense Nuclear Agency,
No. 72-3649, January 19, 1973
LAND
1. Federal, state, and local regulation —
Special land uses — In general
($8.401)
Court jurisdiction and procedure_—
au ¥énerai (¥19.0i)”
National
Environmental
Policy
Act
appites to Air Force's testing program thatis
conducted on Enewetak Atoll even though
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