In Camera Inspections under the Freedom of Information Act

In Camera Inspections Under the Freedom of Information Act Congress passed the Freedom of Information Act1 (FOIA) in 1966 in furtherance of its belief that "an informed electorate is vital to the proper operation of a democracy." 2 The Act's major provision 3 directs government agencies to release identifiable records in their possession to "any person" who requests them, 4 subject to the nine exemptions "specifically stated" 5 in the statute. 6 If the agency fails to release the records on request, the requester may sue in district court for an injunction against the withholding of the records. In such a proceeding, "the court shall determine the matter de novo and the burden is on the agency to sustain its action."7 Although the FOIA has significantly increased the amount of agency information available to the public, 8 it has also been severely criticized 9 for the imprecise language and apparent arbitrariness of its standards. Ambiguities in the provisions, together with bureaucratic resistance to the Act's requirements, 10 have spawned considerable litigation in the Act's short history of operation." 1 5 U.S.C. § 552 (1970). 2 S. RiEP. No. 813, 89th Cong., 1st Sess. 3 (1965) [hereinafter cited as S. REP. No. 813]. 3 Other provisions require the agency to publish certain information in the Federal Register, 5 U.S.C. § 552(a)(1) (1970); and to make available for public inspection its final opinions, statements of policy and interpretation, and staff manuals and instructions, id. § 552(a)(2). 4 Id. § 552(a)(3). 5 Id. § 552(c). 6 Id. § 552(b)(1)-(9). 7 Id. § 552(a)(3). 8 See, e.g., HOUSE COMM. ON Gov'T OPERATIONS, ADMINISTRATION OF THE FREEDONM OF AcT, H.R. REP. No. 92-1419, 92d Cong., 2d Sess. 9 (1972) [hereinafter cited INFORMATION as 1972 HousE REPORT]. 9 For example, Professor Kenneth Culp Davis, the Act's most influential commentator, described it as a "shabby product." Davis, The Information Act: A Preliminary Analysis, 34 U. CHI. L. REv. 761, 807 (1967); see Epstein v. Resor, 421 F.2d 930, 932 (9th Cir.), cert. denied, 398 U.S. 965 (1970); Consumers Union v. Veterans Administration, 301 F. Supp. 796, 800 (S.D.N.Y. 1969), appeal dismissed as moot, 436 F.2d 1363 (2d Cir. 1971). Interpretation of the Act is complicated by the fact that the House and Senate committee reports on the Act contradict each other in many particulars, and in some instances contradict the statutory language itself. See Davis, supra, at 762-63, 790. 10 See Giannella, Agency Procedures Implementing the Freedom of Information Act: A Proposalfor Uniform Regulations, 23 AD. L. REv. 217, 224 (1971). See generally Engel, Introduction: Information Disclosure Policies and Practices of Federal Administrative Agencies, 68 Nw. U.L R.v. 184 (1973). 11 Eighty-two cases were pending on November 1, 1973. Petitioner's Brief for Certiorari The University of Chicago Law Review [41:557 In reviewing agency claims of exemption under the Act, courts have resorted to in camera inspection of the requested materials. For many years courts have used in camera proceedings to determine whether 12 allegedly protected information should be introduced into evidence, and the FOIA was "legislated against the backdrop of [these precedents]."'13 The first section of this comment discusses the advantages and disadvantages of the in camera procedure. The factors that the court should weigh in determining whether to engage in an in camera review' 4 are then discussed. The third section applies the criteria developed to the specific exemptions of the Act. I. TnE BENEFITS AND COSTS OF IN CAMERA INSPECTION Stated in its most appealing form, in camera inspection allows the judge to decide the case on its facts. The basic question in a contested FOIA suit is whether certain words fit certain exemptions. Quite apart from the possibility that the agency has deliberately misdescribed its records, 15 the ambiguities in some of the exemption provisions create situations in which reasonable persons could differ on the classification. at 9, Rosen v. Vaughn, 94 S. Ct. 1564 (1974), denying cert. to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). 2 Courts have used such procedures for over ninety years. See Badische Anilin und Soda Fabrik v. Levenstein, 24 Ch. D. 145, rev'd on other grounds, L.R. 29 Ch. D. 366 (CA.), rev'd, L.R. 12 App. Cas. 710 (1883), discussed in Wigmore, Evidence-Trade Secret -How to Prove It as a Plaintiff, 26 ILL. L. Rxv. 564 (1932). See also Annot., 62 A.L.R.2d 509 (1958). 13 EPA v. Mink, 410 U.S. 73, 88-89 (1973). The House of Representatives has approved an amendment to the Act confirming that "the court... may examine the contents of any agency records in camera to determine whether such records or any part thereof shall be withheld ...." H.R. 12471, 93d Cong., 2d Sess. § l(d) (1974); see 120 CONG. Rtc. H. 1787-803 (daily ed. March 14, 1974). The Senate has passed a similar measure. See S.2543, 93d Cong., 2d Sess. § l(b)(2) (1974); 120 CoNG. RFc. S. 9310-43 (daily ed. May 30, 1974). 14 FOIA suits are original proceedings conducted in accordance with the Federal Rules of Civil Procedure. However, the actions are functionally similar to appeals from agency decisions, and in this comment they are often discussed as if in the posture of appellate review. 15 Cf. Williams v. IRS, 345 F. Supp. 591 (D. Del. 1972), aff'd per curiam, 479 F.2d 317 (3d Cir. 1973), cert. denied, 94 S. Ct. 448 (1973); Cowles Communications, Inc. v. Depart- ment of Justice, 325 F. Supp. 726 (N.D. Cal. 1971). In each case the court required an in camera inspection solely to determine whether the requested records were, as the agency maintained, an investigatory file. See also Engel, supra note 10, at 205-06; Nader, Freedom From Information: The Act and the Agencies, 5 HARv. Civ. RicHTs-Civ. Lm. L. Rxv. 1, 10-12 (1970). "Misdescription" can, of course, also result from the insertion of, nonexempt items into an exempt file to prevent disclosure. See Giannella, supra note 10, at 223-24; Nader, supra, at 9-10. 1974] In Camera Inspections Under the FOIA Congress intended that the courts should make the final determination of the appropriate classification. 16 A developing body of case law holds that the process of classification properly includes the isolation and disclosure of nonexempt items present in an otherwise exempt document or file, 17 and the removal of exempt material, such as trade secrets, from a disclosable document.' The virtue of in camera inspection is that it provides an individualized determination. This benefit, however, has its costs. First, an in camera proceeding does not give the requester an opportunity to present an informed interpretation of the facts, and thus denies him procedural protections normally viewed as necessary.' 9 Second, if the requester fails at the trial level, he faces unusual burdens in contesting the ruling on appeal, for the trial court's ruling, unlike the agency's decision, is given (...truncated)