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WASHINGTON POST CO. v. UNITED STATES DEPT. OF STAT

November 24, 1980

The WASHINGTON POST COMPANY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE et al., Defendants



The opinion of the court was delivered by: GESELL

MEMORANDUM AND ORDER

This Freedom of Information Act case is before the Court on cross-motions for summary judgment, which have been fully briefed and argued. Plaintiff is seeking access to records concerning expenditures made by the State Department from the appropriations for Emergencies in the Diplomatic and Consular Service. The State Department contends that the material is protected from disclosure under Exemption 3 of the Freedom of Information Act, 5 U.S.C. § 552(b)(3) (1976), which applies to material "specifically exempted from disclosure by statute," and cites as the controlling statutes 22 U.S.C. § 2671 (1976) *fn1" and 31 U.S.C. § 107 (1976). *fn2" Plaintiff argues that these statutes are not sufficient to support a claim under Exemption 3. For reasons stated below, the Court sustains the secrecy of this special fund in order to carry out the manifest intention of Congress.

 It will be instructive first to review briefly the sequence of events in this case. On October 3, 1979, a Washington Post investigative reporter wrote the State Department seeking "all records and other materials relating to the State Department's Fine Arts Committee." Two days later, before the State Department had responded to the reporter's first request, the reporter wrote a second letter supplementing his original request to include "some additional records that only partially relate to the finances of the committee." In this second letter the reporter stated that he desired access to the "ledger sheets and schedules of disbursements and receipts" from account numbered 19X8822 and from the account known as the Secretary of State's Emergency Fund. This enlarged request covered all material in the two accounts for the previous three years, and was no longer limited to payments relating to the Fine Arts Committee.

 The State Department responded on October 29, 1979, agreeing to provide access to material included in account numbered 19X8822, but denying access to information concerning the Emergency Fund. The reporter appealed, and on March 6, 1980, the Appeals Review Panel of the Department of State again denied the request, stating that "a long history of practice and Congressional understanding" supported the claim for Exemption 3 under the statutes cited. The newspaper subsequently initiated this lawsuit, seeking access to all records of expenditures from the Emergency Fund for the past three years.

 It is clear from evidence presented by the parties that the Emergency Fund has been used to finance a variety of activities, ranging from payments to foreign informers in visa and passport fraud cases to receptions for donors to the Committee on Fine Arts. *fn3"

 Exemption 3, amended in 1976 to narrow the exclusion, is quite explicit. Its coverage is limited to material

 
specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matter to be withheld.

 The reasoning behind Exemption 3 and the congressional history of this exemption have been discussed by the Supreme Court, see, e.g., Consumer Product Safety Commission v. GTE Sylvania, Inc., 447- U.S. 102, 447 U.S. 102, 100 S. Ct. 2051, 2062-63, 64 L. Ed. 2d 766 (1980), and analyzed at length by the Court of Appeals for this Circuit, see, e.g., Founding Church of Scientology v. National Security Agency, 197 U.S. App. D.C. 305, 610 F.2d 824, 826-29 (D.C.Cir. 1979); Irons & Sears v. Dann, 196 U.S. App. D.C. 308, 606 F.2d 1215, 1219-21 (D.C.Cir. 1979), cert. denied, 444 U.S. 1075, 100 S. Ct. 1021, 62 L. Ed. 2d 757 (1980). There is no need to recite that history here. Suffice it to say that Exemption 3 is triggered only by statutes that either leave an administrator no discretion as to whether or not disclosure is permitted, or which provide sufficient guidance-by specifying particular criteria to be followed or by specifying only a limited range of material to be withheld-that the decision is "a legislative determination and not an administrative one." Irons & Sears v. Dann, supra, 606 F.2d at 1220.

  Although there are no simple rules with which to determine whether 22 U.S.C. § 2671 (1976) and 31 U.S.C. § 107 (1976) are sufficient for Exemption 3, the Court's consideration of the two statutes and of other statutes analyzed under Exemption 3 *fn4" make it clear that the exemption does not apply in this case. The statutes on which the State Department relies are too general in the discretion granted the Secretary and lack standards for the control of that discretion.

 Under 22 U.S.C. § 2671 (1976), the Secretary of State simply is authorized to spend funds "for unforeseen emergencies arising in the diplomatic and consular service" and "may" account for those funds with the certification procedure set forth in 31 U.S.C. § 107 (1976). He also "may not" decide to use the certification procedure, however, and no guidance is provided as to when that discretion should be exercised. The wording of 31 U.S.C. § 107 (1976) is equally general, authorizing the Secretary of State to use the certification procedure for expenditures when "he may think it advisable not to specify" the use. There are no limiting criteria set forth. *fn5" Defendants concede that clause (A) of Exemption 3 does not apply, for the Secretary of State does have discretion whether to disclose information. It is equally clear that clause (B) cannot properly be invoked, because the statutes specify neither particular criteria nor particular types of material to be withheld.

 Under both statutes, the Secretary's total discretion to withhold all expenditures from the Emergency Fund is simply too broad a blanket unqualified dispensation to fall within the exemption. Every statute necessarily will refer, with more or less specificity, to "particular types of matter." In the case of the Emergency Fund, it is undisputed that payments have been made from the Fund for state dinners and receptions, gifts to foreign individuals, expenses of Foreign Service inspectors, and receptions for contributors to the State Department's Fine Arts Committee. To permit the fact that all payments were made from the Emergency Fund to be by itself a sufficient standard to satisfy the "particular types of matter to be withheld" requirement would rob the standard of any meaning.

 The State Department apparently concedes that the statutes themselves do not suffice to meet the standards for Exemption 3, for defendants have contended strenuously that "such apparent generality as may appear from the words of the law itself does not in practice exist." In particular, defendants argue that accounting requirements and precedent serve to check the Secretary's discretion with regard to the Emergency Fund. The Court recognizes that precedent has been invoked in other FOIA cases in analyzing the availability of Exemption 3. See, e.g., Irons & Sears v. Dann, supra, 606 F.2d at 1220-21. But here, unlike the circumstances in Irons & Sears, the precedents are so varied and the limits so few that it cannot fairly be said that precedent serves as an adequate check on the "broad agency discretion ... that Congress sought to eliminate." Sims v. CIA, 642 F.2d 562, 568 (D.C.Cir., 1980).

 But this case does not fit neatly into the accepted analysis that has developed for applying Exemption 3 to various statutes granting discretionary authority to release or withhold information. The traditional authority is faulty here for there is brought into sharp conflict other actions by Congress indicating its intent, in the exercise of clear constitutional authority, to withhold the very information that the traditional Exemption 3 analysis would require be disclosed. Thus, although this case was briefed and argued as a typical Exemption 3 case, defendants' failure to withstand the type of analysis usually attempted in Exemption 3 cases cannot be permitted to end the matter in this particular unique instance.

 The Court in the circumstances presented here must consider the actions of Congress in exercising its authority under the "Statement and Account Clause" found in Article 1, Section 9, Clause 7 of the ...


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