Disclosure Under the Freedom of Information Act (Rose v. Department of the Air Force)

St. John's Law Review Volume 49 Number 2 Volume 49, Winter 1975, Number 2 Article 3 August 2012 Disclosure Under the Freedom of Information Act (Rose v. Department of the Air Force) Gary A. Manso Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Manso, Gary A. (1975) "Disclosure Under the Freedom of Information Act (Rose v. Department of the Air Force)," St. John's Law Review: Vol. 49 : No. 2 , Article 3. Available at: https://scholarship.law.stjohns.edu/lawreview/vol49/iss2/3 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . ADMINISTRATIVE LAW DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT Rose v. Department of the Air Force The Freedom of Information Actl (FOIA) represents the culmination of extensive congressional efforts 2 to foster meaningful public scrutiny of federal agency action.3 Founded upon the premise that an informed electorate is essential to democratic self-government, 4 the Act seeks to provide meaningful access to Government documents and materials." Accordingly, the FOIA creates a right in the general public 15 U.S.C. § 552 et seq. (1970) [hereinafter cited as FOIA]. See generally Davis, The Information Act: A PreliminaryAnalysis, 34 U. Cm. L. REv. 761 (1967) [hereinafter cited as Davis]; Note, The Freedom of Information Act: Shredding the Paper Curtain, 47 ST. JoHN's L. REv. 694 (1973) [hereinafter cited as Shredding the Paper Curtain]. 2According to then Congressman Donald Rumsfeld, the FOIA "was the result of a 12-year effort on the part of press, the Bar and the Congress to begin to deal with decades of unwarranted secrecy in the Executive Branch of the Federal government." Rumsfeld, FOI Cleanup Hitters with Good Followthrough, Am. Soc'Y oF NwvsPAPER EDrroRs BULL., reprinted in 114 CONG. Rac. 3774, 3775 (1968). See also Frankel v. SEC, 460 F.2d 813, 815-17 (2d Cir. 1972). See Hearings on the Administration and Operation of the Freedom of Information Act Before 'the Subcomm. on Foreign Operations and Government Information of the House Comm. on Government Operations, 92d Cong., 2d Sess., pt. 4, 1367-73 (1972). The legislative deliberations prior to enactment are discussed in detail in Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 NoRE DAMiE LAW. 417 (1965). 8H.R. REP. No. 1497, 89th Cong., 2d Sess. 1 (1966) [hereinafter cited as H.R. REP.], quoted in Tennessean Newspapers, Inc. v. FHA, 464 F.2d 657, 658 (6th Cir. 1972). The court in Tennessean noted: One of the reasons for the First Amendment as well as the Freedom of Information Act, is to promote honesty of government by seeing to it that public business functions under the hard light of full public scrutiny. Id. at 660. 4 1n Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), the court indicated that the FOIA Was enacted to provide citizens with access to governmental papers, since Congress recognized that the public cannot make intelligent decisions without such information, and that governmental institutions become unresponsive to public needs if knowledge of their activities is denied to the people and their representatives. Id. at 1080. See Bristol-Myers Co. v. FTC, 424 F.2d 935, 936 (D.C. Cir.), cert. denied, 400 U.S. 824 (1970). James Madison once noted that "[k]nowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power kn iwledge gives." Letter from James Madison to W.T. Barry, reprinted in 9 TBE WITimes or JAwMEs M"isoN 103 (Hunt ed. 1910). This language was adopted by the Senate in its report of the FOIA. S. REP. No. 813, 89th Cong., 1st Sess. 2-3 (1965) [hereinafter cited as C. REP.]. 5 The Second Circuit has stated: The ultimate purpose [of the FOIA] was to enable the public to have sufficient information in order to be able, through the electoral process, to make intelligent, informed choices with resnect to the nature, scope, and procedure of federal government activities. Frankel v. SEC, 460 F.2d 813 (2d Cir. 1972) (Hays, J.). 225 ST. JOHN'S LAW REVIEW [Vol. 49:225 to obtain agency information and requires that identifiable agency records be promptly made available to any person upon request.0 This newly created public right is not, however, without limitation. Although the basic purpose of the FOIA is to increase the quantity and liberalize the scope of disclosure, 7 Congress has refused to extend the applicability of the Act to nine separate categories of information.8 Among the matters specifically excluded from FOIA coverage are personnel or medical files, whose release would result in a "clearly unwarranted invasion of personal privacy," and documents pertaining only to the agency's personnel rules and practices.1 0 In Rose v. Department of the Air Force,1 the Second Circuit was presented with an opportunity to interpret the mandates of the FOIA. Michael T. Rose, a member of the New York University Law Review and an Air Force Academy graduate, sought access to the case summaries of the Academy's honor and ethics code disciplinary proceedings.- 2 He intended to utilize these summaries in connection with a 65 U.S.C. § 552(a)(3) (1970); see EPA v. Mink, 410 U.S. 73, 80 (1973) (White, J.) (the Act "attempts to create a judicially enforceable public right to secure . . . information from possibly unwilling official hands"); Williams v. IRS, 345 F. Supp. 591, 594 (D. DeL 1972). 7See, e.g., Stokes v. Brennan, 476 F.2d 699, 700-01 (5th Cir. 1973); Bristol-Myers Co. v. FTC, 424 F.2d 935, 936 (D.C. Cir.), cert. denied, 400 U.S. 824 (1970); UNrn STATES DEP'T OF JUSTICE, ATTORNEY GENERAL'S MEMORANDUM ON THE PUBLIC INFORMATION SEC- TION OF THE ADMINISTRATIVE PROCEDURE AcT, at III-IV (1967). See also S. REP., supra note 4, at 3; H.R. REP., supra note 3, at 1. 85 U.S.C. § 552(b) (1970) provides: This section does not apply to matters that are (1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with an agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency; (8) contained in or related to exa (...truncated)