to challenge the basis of, and reasons for, a denial under this Section directly and specifically. Yet Section 51.170, adopted by the Board of Passport Appeals on December 30, 1953, reads:
'In determining whether there is a preponderance of evidence supporting the denial of a passport the Board shall consider the entire record, including the transcript of the hearing and such confidential information as it may have in its possession. The Board shall take into consideration the inability of the applicant to meet the information of which he has not been advised, specifically or in detail, or to attack the credibility of confidential informants.'
The Court must consider Sections 51.135 and 51.170 together. In so doing, it becomes evident that the Passport Office retains substantially unrestricted discretion to deny passports under substantive classification 51.135. Facts which they consider warrant a denial need never appear on record. Whether, in fact, evidence exists to warrant a denial, neither an applicant nor the courts can ever know. The source, quality, or quantity of evidence which has guided the Board and been instrumental in its decision can be reviewed by no one. This cannot fairly be held to constitute reasonable regulation. It must be viewed as conferring upon the Board limitless authority. Any hearing provided an applicant becomes an empty gesture. Consider this case. In explaining to plaintiff why his application had been denied the Director of the Passport Office, on February 24, 1955, wrote:
'Evidence has been obtained that you are a member of the Communist Party, and reports of your activities in recent years indicate that if your membership was terminated it was under such circumstances as warrant the conclusion, not otherwise rebutted by the evidence, that you continue to act in the furtherance and under the discipline of the Communist Party.'
Does this mean that all the Passport Office need do is restate the wording of 51.135(a) to deny a passport? Such conclusion is suggested, as evidence supporting the above statement scarcely appears in the record, although it may well be found in some secret file. Consider also the letter to plaintiff from Mr. John W. Sipes, Counsel of the Board of Passport Appeals, dated April 19, 1955. It informed plaintiff what was indicated in the confidential files, but not what evidence was actually contained in the files or the source of such evidence. To the same effect is the affidavit of John Foster Dulles, Secretary of State. His decision to deny plaintiff a passport rested, so he stated, '* * * on a pattern of associations and activities on the part of plaintiff over an extended period of time leading to the conclusion that plaintiff has been and continues to be a supporter of the Communist movement. Included are associations and activities disclosed by or inferred from the Department of State files concerning the plaintiff as follows * * *'.
In short, there can be no dispute that confidential information was employed; that files were not revealed; and that evidence contained therein could not be, and was not, subjected to cross-examination. See Transcript of Proceedings, May 6, 1955 of Hearing Panel of the Board of Passport Appeals, pages 62-67.
How can an applicant refute charges which arise from sources, or are based upon evidence, which is closed to him? What good does it do him to be apprised that a passport is denied him due to associations or activities disclosed or inferred from State Department files even if he is told of the associations and activities in a general way? What files? What evidence? Who made the inferences? From what materials were those inferences made?
To uphold 51.170 would grant to the Government the right to deny passports in an uncontrolled manner, with virtually absolute authority, at any time and in any way it sees fit. The right to a quasijudicial hearing must mean more than the right to permit an applicant to testify and present evidence. It must include the right to know that the decision will be reached upon evidence of which he is aware and can refute directly. See Dulles v. Nathan, D.C.Cir., 1955, 225 F.2d 29, 30-31. It is not enough that Section 51.170 requires the Board to take into consideration the inability of the applicant to meet the information of which he has not been advised, or to attack the credibility of confidential informants, for whether the Board does or does not do this no one can ever know.
Confidential information is of unquestionable importance to executive officers in performing their duty, but it should be confined for use in obtaining factual data which may itself be used of record. When the basis of action by any branch of the government remains hidden from scrutiny and beyond practical review, the seeds of arbitrary and irresponsible government are sown. More and more the courts have become aware of the irreparable damage which may be, has been, and is, wrought by the secret informer and faceless talebearer whose identity and testimony remains locked in confidential files. See Burrell v. Martin, D.C.Cir., 1955, F.2d ; and Parker v. Lester, 9 Cir., 1955, 227 F.2d 708.
Section 51.170, when used in conjunction with 51.135, does not comport with due process. The case will be sent back to the Passport Office for a hearing within twenty days. All evidence upon which the Office may rely for its decision under Section 51.135 must appear on record so that the applicant may have the opportunity to meet it and the court to review it.