DEPT. OF AIR FORCE v. ROSE
Legal provision: Freedom of Information, Sunshine, or Privacy Act
Argument of Friedman
Chief Justice Warren E. Burger: We will hear arguments next in 74-489.
Mr. Friedman, would you prefer to defer your beginning until after lunch.
Mr. Friedman: I think I would Mr. Chief Justice if it is convenient for the Court.
Chief Justice Warren E. Burger: Then we will begin at 1 o’clock and open with your case?
Mr. Friedman: Thank you.[Lunch break]
Chief Justice Warren E. Burger: Mr. Friedman you may proceed on 489.
Mr. Friedman: Mr. Chief Justice and may it please the Court.
The question in this case here in the writ of certiorari to the Court of Appeals for the Second Circuit is whether the Freedom of Information Act requires the disclosures of summaries of proceedings conducted at the Air Force Academy by so called Honor and Ethics Board or Committees.
These summaries contain the results and the disposition of proceedings conducted by cadet groups of the academy for the enforcement of the Honor Code and the Honor Code is the principal issue in the case and as we refer to it the proceedings under the Ethics Code are relatively infrequent.
The government contends that these summaries are exempted from disclosure by two exemptions of the Freedom of Information Act.
Exemption 6, which covers personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy and Exemption 2 which covers matters related solely to the internal personal rules and procedures of an agency.
Chief Justice Warren E. Burger: Mr. Friedman, in your view, does that term unwarranted invasion mean that there is a balancing process that is to balance the importance of the disclosure to the person asking for it against the potential for injury to the subject?
Mr. Friedman: I would think so Mr. Chief Justice --
Chief Justice Warren E. Burger: And the legislative history shed any light?
Mr. Friedman: The legislative history does indicate that in that phrase Congress did intend there to be a balancing.
But I would suggest Mr. Chief Justice that on the one side of the equation, it is probably the more accurately might be phrased as the interested public because under the Freedom of Information Act, any person can get information but it is not required for him to show his need for it.
I think it is a general public interest.
But in considering the public interest, I think it is appropriate to look to the purposes for which the information is sought.
But may I just add by way a preliminary thing that our first submission is that under this exemption, you never reach that issue because as I shall develop, we think that personnel and medical files are protected against disclosure without regard to making that showing.
Justice William H. Rehnquist: Does unwarranted invasion of personal privacy modifies only the similar files?
Mr. Friedman: That is our submission Mr. Justice.
That is our submission.
And then we go on to say but in any event in this case, there was a clearly unwarranted invasion.
Now the Honor Code of the Air Force Academy states we will not lie, steal or cheat, or tolerate among us any one who does.
The code therefore has two elements.
First, the substantive development, the ban on lying, cheating, or stealing and secondly, the toleration clause, and what this means is that the code imposes an obligation on the cadets.
Not only to observe these requirements themselves but to report anybody who fails to comply and in many instances, of course what you have is a cadet report that he saw another cadet cheating who did was lying or doing something dishonest.
The code was actually created by the cadet core and it is the cadet core that administers it and enforces it.
If a violation is reported to someone known as an honor representative and what they do is each squadron of the cadet core appoints two honor representatives, they elect them in fact so that you have 80 Honor Representatives whose basic responsibility is to administer the code.
If an honor violation is reported, an investigation is conducted by a group of three Honor Representatives.
At this investigation, they take statements from witnesses, talk to the cadet involved.
If his result of this investigation it appears that there has been a violation of the Honor Code, then a formal proceeding is instituted.
A Board of eight cadets is appointed and this Board which is called an Honor Board or an Honor Committee then conducts a hearing at which the cadet appears as well as any witnesses the cadet wishes to call.
Sworn testimony is not taken.
The cadet is informed that he has the right to make a statement or to remain silent and he is also informed that he has the right to call any witnesses he wishes.
There is no cross-examination and counsel is not permitted to be present at the hearing, although the cadet is given the opportunity prior to the hearing to consult with legal counsel and the staff judge advocate's office at the Air Force Academy.
This procedure that I have mentioned of course is fully consistent with the basic concept that this code is administered by the cadets and for the cadets.
Now if at the conclusion of a hearing, the committee finds the cadet guilty of the alleged violations and it has to be a unanimous finding, the cadet normally is expected to resign from the academy.
If on the other hand they either find the cadet not guilty or they find him guilty but with something called discretion which means that despite the violation, they feel it is appropriate for him to continue at the academy than he returns to the student body.
The hearing is kept confidential.
The only people admitted are members and involved and a certain number of cadets plus those officers at the Air Force Academy who are directly involved in conducting the proceedings.
Unknown Speaker: Are there proceedings that are transcribed?
Mr. Friedman: The proceedings are not transcribed Mr. Justice.
There is a man called a recorder who makes notes.
But the proceedings are not transcribed and the people are warned at the hearing, admonished is perhaps a better word that the proceedings are confidential for obvious reasons because when a man’s honor is at stake it should be kept confidential.
Unknown Speaker: At that stage Mr. Friedman, is there any file or some kind collected?
Mr. Friedman: Well only in the sense that the written statements are taken.
Only in the sense that the written --
Unknown Speaker: What goes into the file?
Mr. Friedman: I do not know what goes into the file in that sense, Mr. Justice.
Unknown Speaker: And is there a difference when the result is guilt as against either innocence or with discretion?
Mr. Friedman: The only difference Mr. Justice is this and if I may come just to that in a minute because I think I should explain what happens.
There is no transcript taken.
And the record shows that the Honor Committee of the Honor Board does not either makes a verbatim or summarized transcript.
The only records as an affidavit in the record states are brief one page summaries of what happened and these summaries state what was found –-
Unknown Speaker: Prepared by whom, the recorder?
Mr. Friedman: Prepared by the recorder of the Board.
Now these summaries in turn are then distributed to each of the cadet squadrons.
There are 40 squadrons and a copy of the summary is distributed to each squadron.
If the man is found guilty, the man’s name is included.
If the man is either found not guilty or there is discretion, the man’s name is deleted and it might be shown as Cadet X and Cadet Y or something like that.
These summaries are then placed upon the bulletin board in each squadron in a file which says on the top of it “Honor Case Summary for Official Use Only.”
Now the reason these –- One other thing in the case of either not guilty or discretion, not all of the summaries are distributed but only those that it is felt by the board of the Honor people would be appropriate as illustrative cases.
The reason they are distributed to each of the 40 squadrons and discussed with the honor representatives in the squadron is that the responsibility for the enforcement of the code lies with the Cadet Core and therefore it is essential to the Cadet Core to know the decisions of this Honor Boards.
To know what kind of conduct was deemed to violate the code, what kind of conduct was deemed not to violate the code and what kind of conduct was deemed to violate the order but excused.
So I think it can fairly be said that the summaries are in effect the end-product of the Honor Board proceedings.
They are in actuality the only record of the proceedings of the board and of its action.
Unknown Speaker: How do I get 40 copies one for each of the 40 squadrons?
Mr. Friedman: One for each of the --
Unknown Speaker: And does each have its own bulletin board?
Mr. Friedman: And each has its own bulletin board.
Unknown Speaker: And so what then are distributed throughout the Academy are 40 copies?
Mr. Friedman: 40 copies plus a few additional to various of the departments that should have these information.
Unknown Speaker: And they are posted for how long?
Mr. Friedman: Generally, until the end of the academic year.
Unknown Speaker: And then what happens to them?
Mr. Friedman: Then they are destroyed.
But in addition to that there is a Master File which is kept for a lengthy period.
In other words, in the office of someone who is called the Commandant’s Executive for Honor and Ethics there is a file of these summaries which he maintained.
Unknown Speaker: And this suit was to gain access to the Master File?
Mr. Friedman: To gain access to the summaries.
Unknown Speaker: But with the names included?
Mr. Friedman: With names deleted.
Unknown Speaker: And I gather the Court of Appeals said the law should be in camera proceedings to see if there should be further reduction.
Mr. Friedman: Well, what the Court of Appeals in effect, as I will come to in a minute said was that if recognized that even with these names eliminated there was a great danger that this might be down to the cadet’s detriment because of dredging up all things but that went on and said but eliminate the names and maybe you can eliminate other identifying material and with those eliminations we hope --
Unknown Speaker: And eliminate other identifiable material in camera proceeding conducted by the District Judge?
Mr. Friedman: By the District Judge, which it seems to us, it is basically inconsistent with the Court’s previous recognition at several points in its opinion that even elimination of these details will not be enough.
And that of course was the basis, one of the major basis on which the Air Force refused to make these materials available because they said three points in the record, it set forth in various affidavits and letters.
They said that even with this material being eliminated, nevertheless this could jag the memories of people who years ago had remembered something and this could be down to a cadet’s detriment for the rest of his career.
And that is the basic reason we have taken the case to this Court because we think it is not important --
Unknown Speaker: May I get back to Justice, is there anything in the record which indicates that for sure all 40 copies at the end of the school year of each of these summaries is collected and destroyed?
Mr. Friedman: No, there is nothing for sure but all I can say is this indications, they say that in the record and I was advised that that is in fact the general practice.
Chief Justice Warren E. Burger: Is there anything to prevent the cadet for example from taking it off the bulletin board in making 39 Xerox copies other than the Honor Code itself?
Mr. Friedman: The Honor Code itself I would think Mr. Justice plus the fact that I assume the cadets, most of the cadets at least are aware of the importance of the Honor Code and the importance of the Honor Code and the importance of preserving its confidentiality.
I suppose a cadet could do that, one would hope that a cadet would not do that.
Unknown Speaker: Are the cadets not committed in some way to keep knowledge of these things to themselves or not?
Mr. Friedman: Oh! Well, it is repeatedly.
It is repeatedly urged upon them and stressed that this is for official use only and that the material is confidential.
I thought that the Chief Justice's question was suggesting you might have a bad apple in the barrel who would go out and take copies and distribute them.
It is possible certainly Mr. Chief Justice but I think it is unlikely and as far as I know there has been no experience along that line at the Air Force Academy.
Justice Thurgood Marshall: Mr. Friedman, none of these are in the record? Are any of these summaries?
Mr. Friedman: No, they are not Mr. Justice.
Justice Thurgood Marshall: Well, I am basically trying to figure what could be in there, they took the name and connection and all what could beat him then been?
Mr. Friedman: Well, it depends what you mean by his connection.
If you cut out all of the identifying details, there would not be much left with it.
But as I understand it, what is involved --
Justice Thurgood Marshall: Well, I could say that a cadet was found smoking marijuana in the basement room in Barrack C, there is nothing identified in that would he?
Mr. Friedman: Well even that if there was a room around at the academy.
But you might have a very different situation.
Suppose what it reported was that a cadet in a Thirteenth Squadron or whatever it is called, cheated at his examination in Mathematics Four, before in Captain so and so's class, then it seems to me, this might be enough to the small group of people connected with the academy to someone say, “Oh that is the fellow who did it.
I remember that story.”
Justice Thurgood Marshall: Do you not think we should have something that we know what we are talking about?
I do not know what I am talking about.
Mr. Friedman: Well, Mr. Justice the problem we are having something is that itself would breach the very confidentiality of the documents to have something because the whole purpose to which we are --
Justice Thurgood Marshall: Well, we have to take your word that there might be something which you do not know anything about.
Mr. Friedman: It is more than my word Mr. Justice.
It is statements by two officers at the Air Force Academy.
Unknown Speaker: What about the two officers in the Air Force Academy?
Mr. Friedman: And the Assistant to the Secretary of the Air Force and the Court of Appeals.
Justice Thurgood Marshall: If they give me one example I might be able to understand what they are talking about.
Mr. Friedman: And the Court of Appeals.
If I may refer you Mr. Justice to page 11(a) and 12(a) of the appendix to our petition for certiorari, where the Court of Appeals in dealing with these problems stated that a persons privacy may be as effectively infringed by reviving dormant memories as by imparting new information.
For example, a senior officer and an ex-cadet might upon reading a summary or a reference to it realize for the first time that a man under his command had once been the subject of academy discipline.
It would be called comfort to the Junior Officer to be told that his chief had always known this fact anyhow.
Although he had long forgotten it or it never made the ultimate connection among various bits of knowledge until the article junk has recollected.
The Court of Appeals itself --
Justice Thurgood Marshall: Now, whose testimony is that that says it does specifically mention the group that the man belongs to?
Mr. Friedman: There is nothing in that but --
Justice Thurgood Marshall: But suppose that they said an Air Force cadet did something?
How could I rely on it?
How could I rely on anybody’s rumor?
Mr. Friedman: But I do not think that that is what they are seeking Mr. Justice.
They are seeking these summaries with as they described it the names and identifying details deleted while to make the document effective, to make the document effective so that it will show nothing that would permit the identity of the cadet to be discerned that would in effect eliminate all of the stuff.
If they want to find out they say is to find out precisely how this code in application has dealt with these concepts of lying, cheating, and stealing.
Justice Thurgood Marshall: Won't we have a better case if the District Judge looked at it in Camera, took out what he thought should be taken out and then we look at it.
Mr. Friedman: You might have a better case but we do not think that is what the statute requires.
Justice Thurgood Marshall: Well, we have a case that we know something about what we are talking about.
Mr. Friedman: I think the Court does know Mr. Justice on the basis of these affidavits explaining how and why the release of this information would and could have a very serious consequence upon the future careers of these cadets.
That is when we are talking about personal privacy; it seems to me the essence of it is to protect the publication of this information.
This is privacy.
These are men, some of them many years ago when they were relatively young got into a strike.
They did something bad.
Unknown Speaker: (Inaudible)
Mr. Friedman: It could be 15 or 20 years ago.
The Air Force Academy started 1955.
So this is a man who is now in the middle of his career and suddenly something like this comes out or Junior Officer to have them two or three years ago, perhaps.
And at that point, it was all taken care of.
But it was forgiven and lo and behold, it is suddenly brought up again.
That is the problem.
That is the problem that we are dealing with.
Unknown Speaker: Mr. Friedman, how many cadets are there at the Air Force Academy?
Mr. Friedman: About 4200 roughly a thousand a class.
Unknown Speaker: And do I understand that all 4200 would know the name and circumstances of an Honor Code violation where the individual is found guilty?
Mr. Friedman: Yes.
Unknown Speaker: So they are 4200 people who know the facts.
Mr. Friedman: Because in the case of guilty, each of these summaries would be distributed and placed on the bulletin board in each of the squadrons.
Unknown Speaker: Does the Honor Code purport to impose an oath of confidentiality forever on graduates of the academy?
Mr. Friedman: No, it does not purport to do that but I think the essence of the Honor Code is that you will behave as an Honorable individual that you normally would not disclose.
We cannot be sure.
We cannot be sure that some years later, someone will not disclose this but it seems to us that is inherent in the nature of this system.
But we are concerned about is making public information that would jog old memories as the Court of Appeals said that could lead people who had long since forgotten about this to recall it to memory.
And that is the thing that is concerning.
Unknown Speaker: Since I have uninterrupted you, did the military say they still have things called 201 files?
Mr. Friedman: I do not know I suspect so.
Unknown Speaker: Will this summary be contained in an individual’s 201 file, if he happens not to have been found guilty but said in one of these discretionary cases?
Mr. Friedman: No, it would not Mr. Justice.
It would not be put in his personnel file but it would be put in the general reading file, the general file of all of these things.
But we do not think the fact that the individual that is not in his 201 file necessary means it is not a personnel file within the meaning of the statute.
Let me if I may get to our first legal occupant which is these are personnel files and that the statute does not require a showing that the disclosure of either personnel or medical files would constitute a clearly unwarranted invasion of personal privacy.
Even though as I have indicated to Justice Powell, this material is not in included in the technical personnel file, we think it is part of the personnel file because it deals with the conduct of discipline of the activities of an individual.
This is the record.
This is the only record of this man’s behavior.
Chief Justice Warren E. Burger: At the time of his graduation on his assignment, would it be available for that purpose?
Mr. Friedman: Presumably if he is found not guilty or discretion, I suppose it should not have any but I just do not know because this is all again kept confidential within the Air Force Academy, I just do not know.
Now, the language that I have referred to is personnel and medical files and other files, the disclosure of which would constitute an unwarranted invasion of personal privacy.
Unknown Speaker: That may not be important but that were similar?
Mr. Friedman: Similar file, I am sorry Mr. Justice.
Unknown Speaker: Well that may be important.
Mr. Friedman: Somewhat.
The legislative history of this statute which we have discussed at considerable length in our reply brief indicates that the first bill that really, there were number of early bills but there were two basic bills in the 88th and 89th Congress which culminated the Freedom of Information.
The first Bill had no provision at all exempting personnel files, medical files, or similar files and it apparently was on the assumption that most of these files were protected by other statutes.
But if the hearings on these bill there was complaint by a number of witnesses that they were vast quantities of government files which contained a lot of personal information and that should be protected and they specifically referred to personnel files and medical files.
And following that hearing the Senate added an amendment to the Bill which is set forth at the bottom of page 6 of our reply brief.
And as originally drafted, the amendment provided an exemption for personnel files, medical files, and similar matter the disclosure of which would constitute a clearly unwanted invasion of personnel privacy and the committee report on that Bill stated that quoted at the top of page 7, in an effort to indicate the types of records which should not be generally available to the public, the Bill lists personnel and medical files.
And since that would be impossible to name all such files, the exemption contains the wording and similar records the disclosure of which would be constant and clearly unwarranted invasion of personal privacy.
Now, we think in the light of that committee report and the language as originally drafted, Congress intended the disclosure requirement to modify only similar matter and to provide an unqualified immunity for personal file, personnel files, and medical files.
When Congress finally enacted the Freedom of Information Act, they changed that language to the present language in the Bill and what they did was eliminate the commas, combined personnel and medical files into one category and substitute for the word similar matter, the word similar files.
Again, the legislative history that we have quoted shows that Congress wished to protect the confidentiality of personnel and medical files.
And we do not think this change in language was intended to make any change in the basic design the basic purpose which led to the insertion of this provision in order to protect the confidentiality of personnel files and medical files.
Congress in effect made a judgment that the disclosure of personnel and medical files necessarily would constitute a clearly unwarranted invasion of personal privacy and then went ahead and recognized, there were other files which contained similar damaging material and it therefore provided an additional exemption for those of the similar files whose disclosure would have this serious impact upon personal privacy.
Unknown Speaker: The Committee report from which you read was on a predecessor bill, is that right?
Mr. Friedman: That was on the predecessor bill, yes Mr. Justice but may I refer you to page 9, the material we have quoted in the middle of the page which is the report on the final bill which in discussing the general purposes of the act pointed out that while they were enacting a broad philosophy of freedom of information, it was necessary to protect certain equally important rights of privacy with respect to certain information in government files such a medical and personnel records.
So we think once again, this reflects the basic Congressional intent and philosophy to protect the privacy of personnel and medical files.
Unknown Speaker: Mr. Friedman, are you arguing that these summaries without more or personal files?
Mr. Friedman: That is correct.
Unknown Speaker: And then alternatively, that if they are not, in any way, they are similar files?
Mr. Friedman: That is correct.
And the significance of the distinction is that if they are personnel files and if the Court agrees with our responsiveness, our analysis of the statute that that is enough, that is enough to prove --
Unknown Speaker: Because that implies that personnel files, they are files, the discloser of which would constitute clearly unwarranted invasion?
Mr. Friedman: Yes, the Congress itself has made the judgments to personnel and medical files and of course --
Unknown Speaker: You read this really personnel or medical files and similar files to disclose which also would constitute those?
Mr. Friedman: And of course if the respondents are right, if the respondents are right that you have to make the showing with respect to the disclosure of personnel files, you would also by the same token have to make the disclosure with respect to medical files and of course, there is a well recognized privilege for communications between patient to doctor.
Justice Thurgood Marshall: Mr. Friedman, these files you are talking about are those that are in this -- on a man’s office, are those the ones you are talking about?
Mr. Friedman: That is right.
It is the summaries contained in the file in the Honor Executive’s Office and it is the same material that has been distributed to the squadron.
Justice Thurgood Marshall: How can it be a personnel file?
Mr. Friedman: Because --
Justice Thurgood Marshall: Because it involves personnel?
Mr. Friedman: Because it more than just involves personnel.
It deals with the individual cadet involved, it is the record.
It is the only --
Justice Thurgood Marshall: It is the record of all of the guys that have been brought up, not any one?
Mr. Friedman: Yes, but it is individual records.
It is the records relating to --
Justice Thurgood Marshall: There is no personnel file there on Joe Black?
Mr. Friedman: No, there is no personnel but --
Justice Thurgood Marshall: But Joe Black has a personnel file some place else in the Academy?
Mr. Friedman: He does but that in terms of the basic policy of Exemption 6, we think that Congress did intend this kind of material to be treated as a personnel file because its disclosure would have this adverse impact.
Unknown Speaker: Well now, but that sounds a little bit bootstrapy.
How do you define personnel file or rephrase it to include this within it?
I mean, it is not in a man’s 201 file and if you were to presumably go through the man’s file entirely, you would not find this in it?
Is that not correct?
Mr. Friedman: That is correct but nevertheless, nevertheless there is file in the academy which contains these summaries relating to the individual cadets and it seems to us this deals with personnel.
This is the only record.
This is the only record showing what has happened to this man in terms of his Honor Board.
Unknown Speaker: What about Civil Service Commission records of Adverse Action Proceedings or Summary Court Martial Proceedings would those all be personnel files under your definition?
Mr. Friedman: I would think within the definition of Exemption 6, yes.
Within the definition of Exemption 6, I would say yes.
Unknown Speaker: Mr. Friedman, I am still not clear.
I understand there is a Central File but where the officer remains in the service, let us say he is on duty in the European Theater, there is a personnel file there whatever its number would be.
Will there be a copy of this summary in that?
Mr. Friedman: No.
Unknown Speaker: No.
Mr. Friedman: There will not be a copy of the summary in that file.
Now I would like to reserve --
Chief Justice Warren E. Burger: Is there any explanation in the record that would shed light on that so that those omitted from the conventional personnel file for reasons of protecting the confidentiality in extra measure, anything like that?
Mr. Friedman: There is nothing in the record to indicate that but I would assume so Mr. Chief Justice because once the man has been found not guilty or once discretion has been exercised, as far as the Air Force is concerned, he has a clean slate and they do not want this to follow.
Indeed, the danger is that the concern is that years later, this thing will suddenly be dredged up and that is all spelled out.
The concern is all spelled out as I indicated in the opinion of the Court of Appeals in the various items in the record and we believe that that shows that even if this is viewed as similar file, nevertheless the effect of disclosing it, would constitute a clear invasion of personnel files.
Unknown Speaker: Mr. Friedman, do I understand now that the government no longer is relying on Exemption 2?
Mr. Friedman: No, we are relying.
I am sorry if I gave the wrong impression Mr. Justice.
We are relying on Exemption 2, and we have discussed the Exemption 2 both in our main brief and in our reply brief.
We think these are also covered by Exemption 2, but Exemption 6 has been the major focus of this litigation in this Court and that is why I have dealt with it in the oral argument?
Unknown Speaker: Is their any concern that if you continue to lose this case as the government has lost it as for the Honor Code System is destined for destruction?
Mr. Friedman: There is a concern as indicated in the record that the essence of this is confidentiality and the toleration clause in particular under which cadets feel obligated and do report violations, they might be very reluctant to report violations, if all of this stuff came out, I mean I think the code operates the basic rationale, the basic procedure and method on which the code operates is that it is being kept confidential.
This is a matter within the cadet core, this is not going to be made public.
Chief Justice Warren E. Burger: Thank you Mr. Friedman.
Argument of Barrington D. Parker
Mr. Barrington D. Parker: Mr. Chief Justice and may it please the Court.
As the Deputy Solicitor General has indicated, this case presents for the Court’s consideration, the scope of two of the Freedom of Information Act Exemption, Exemption 6 relating to personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
An Exemption 2 which pertains to matters related solely to the internal personnel rules and practices of an agency.
The documents sought are case abstracts of adjudications by the Air Force Academy’s Honor and Ethics Code Committees.
Unknown Speaker: Case abstracts, Mr. Parker that is synonymously summaries as Mr. Friedman has used the word.
Mr. Barrington D. Parker: Yes sir, it is.
These abstracts are sought with all names as well as all other identifying references deleted.
The documents will be used in connection with the study of Due Process at the Nation Service Academy as being conducted under the auspices of the New York University Law Review.
Now the documents --
Unknown Speaker: Mr. Parker, under auspices?
Mr. Barrington D. Parker: Well, the plaintiff is a former member of the NYU Law Review.
The other two respondents are former Editors-In-Chief of the Review.
Unknown Speaker: Well, when you say auspices, I take it --
Mr. Barrington D. Parker: I mean in connection with there, I do not mean to suggest that the work was being done in connection with there work for the review.
Unknown Speaker: All right.
Your use of the word auspices confused me a little bit because in his published --
Mr. Barrington D. Parker: Unfamiliar with that disclaimer, yes sir.
Unknown Speaker: It does state, the publication does not indicate adoption reviews expressed herein by NYU, the New York University School of Law, the New York University Law Review or its editors.
Mr. Barrington D. Parker: Yes Sir, I understand that.
Unknown Speaker: And just so we understand what the word auspices mean.
Mr. Barrington D. Parker: Yes Sir.
Unknown Speaker: The complainants are not officers of the law review presently are they?
Mr. Barrington D. Parker: No Sir, they were at the time at various stages during administrative proceedings.
Unknown Speaker: Is Mr. Pedowitz still a party?
Mr. Barrington D. Parker: Pardon me.
Unknown Speaker: Is Mr. Pedowitz still a party?
Mr. Barrington D. Parker: Yes Sir.
The documents have been sought for the sole purpose of determining the substantive content of the Academy’s Honor and Ethics Code as the code has been applied on a case by case basis at the academy.
Unknown Speaker: Is their any question of mootness in this case?
Nobody has mentioned it in the briefs that I saw but you just said that, it certainly suggest there might be?
Mr. Barrington D. Parker: No Sir, there is not.
All of the empirical source material to back up the moment the study has been published but pursuant to an arrangement with the New York University Law School, all of the empirical source material which reflects hundreds and hundreds of man hours of work and investigation and interviews and so forth will be made, will be collected and maintained at the New York University Law School.
And anyone who is interested in the documents substantiating the underlying certain conclusions in the study and refer to the source material which will be on file.
If these case abstracts are produced and to the extent they are, they will be on file there.
Unknown Speaker: But the study has been published, has it not?
Mr. Barrington D. Parker: Yes sir, that is correct.
Unknown Speaker: Without obviously, any reliance on these documents.
Mr. Barrington D. Parker: Well, there is discussion of, that was one of the major problems and in terms of the timing of the publication of the study they had to publish it before the adjudicative process had ended.
But I would also like to stress that of course there is no standing requirement under this Act documents --
Unknown Speaker: No, I am not talking about the standing.
I am talking about mootness.
Mr. Barrington D. Parker: -- are to be made available to any person.
Unknown Speaker: Mootness not standing.
These requests were made for the purpose of the study, were they not?
Mr. Barrington D. Parker: Well, the Second Circuit solicited views on that question and both our responses and the responses of the government are part of the record and neither of us believe that the controversy was moot.
Unknown Speaker: So long as you continue to walk the information I take it that is sufficient to give you a stand to go into Court under the Freedom of Information Act?
Mr. Barrington D. Parker: That is correct Your Honor.
Unknown Speaker: But is there an allegation anywhere that you continue to want it after the study was completed?
Mr. Barrington D. Parker: The record clearly indicates that there was a continuing interest on the part of the respondents in these documents.
Chief Justice Warren E. Burger: In your view Mr. Parker, does the term unwarranted modifying either intrusion or some were to that effect require a balancing process as I inquired with Mr. Friedman so as to measure the reasons for which the information is sought or has been suggested.
Is everyone who makes an inquiry on exactly the same footing no matter what his purpose may be?
Mr. Barrington D. Parker: Well, I believe Your Honor that the primary focus of the Act is public access to information.
In connection with this exemption, I believe there is support in the legislative history for the approach that the reasons for which documents are sought may be considered but the primary focus there is, this is with respect to Exemption 6, I believe is simply is an invasion of privacy and if so, how great?
Unknown Speaker: But then there is a term unwarranted.
It indicates that they thought they were some kinds of intrusions that would be warranted and some that would not be warranted.
Mr. Barrington D. Parker: I believe that the unwarranted language is designed to authorize the Court to look at the seriousness of the likelihood that somebody’s privacy will be invaded and as I will explain in a moment Your Honor, I think in connection with the disclosure of these abstracts, there is no reasonable probability that anybody’s privacy will be invaded.
Justice William H. Rehnquist: How about the balancing on the other side, under the unwarranted clause, do you look at the Court’s conception of the importance of the need that is asserted by the plaintiffs.
I mean, if it were just idle, if someone came in and admitted that was just idle curiosity and not to write a law review article, would that perhaps require a different outcome in one case and another under the unwarranted clause?
Mr. Barrington D. Parker: I do not believe so.
I think that the reasons for which documents are sought given the scheme and the philosophy of the Freedom of Information Act are secondary and even tertiary considerations.
Unknown Speaker: Well, I wonder Mr. Parker might that 6(b) interpreted as implying that there is an invasion to personal property.
So Congress found on the disclosure about personnel and medical or other similar file?
And there has got to be some justification for that invasion.
Congress already has determined that disclosure would involve an invasion.
Is that not warranted perhaps?
Mr. Barrington D. Parker: Well, I do not believe Mr. Justice.
I certainly do not believe and I would not concede that there is a realistic kind of invasion of personnel privacy when we are talking about disclosing documents --
Unknown Speaker: I am just wondering if the Congress did not make that conclusion.
Mr. Barrington D. Parker: I do not believe they did.
Unknown Speaker: The way --
Mr. Barrington D. Parker: I do not believe that that was there concern.
The substantive case abstracts which are sought would be used for the purposes of something documenting the substantive content of the Honor Code to show what fact patterns or what conduct has been thought to consider to amount to lying, cheating, stealing, or tolerating.
I would like to stress that the case abstracts in an unedited form which include the names and salient facts are posted in 40 different locations around the academy and they are available for inspection and discussion among thousands of cadets and also the employees or administration at least and the faculty of the academy.
And I submit there is nothing in the record which indicates that because of any Air Force Regulation, cadets are prescribed and talking about these matters among themselves or among Non-Academy Air Force Officers later.
Justice Thurgood Marshall: This is only for one year?
Mr. Barrington D. Parker: Pardon me.
Justice Thurgood Marshall: It is only for a year, is it not?
Mr. Barrington D. Parker: That they opposed it? Yes sir, but they are --
Justice Thurgood Marshall: And they are not available to the general public after that?
Mr. Barrington D. Parker: They are not.
That is correct.
They are not available.
Justice Thurgood Marshall: They are not available to any of the other cadets after that?
Mr. Barrington D. Parker: I do not believe that is the case.
It is my understanding on the record here that the case files which are collected in the master binder are available for review by the cadets at any time.
So you have there really a historical collection of these abstracts.
Not simply for one year.
Unknown Speaker: Any cadet Or just those involved with the --
Mr. Barrington D. Parker: Any cadet I believe who is interested in what and how the academy has functioned --
Unknown Speaker: Let us assume that is not so, does that change your case?
Let us assume that as Mr. Justice Marshall suggests, let us assume that they are not available.
Mr. Barrington D. Parker: After one year?
Unknown Speaker: Yes.
Assume that they are not available generally.
Mr. Barrington D. Parker: I do not believe that changes the case at all.
Unknown Speaker: And they are not available to general public when they are posted either, are they?
Mr. Barrington D. Parker: Oh! That is correct.
Unknown Speaker: Or even the cadets generally?
Mr. Barrington D. Parker: They are available to cadets generally when they are posted that is why they are posted.
The facts of the --
Unknown Speaker: Are they posted at areas where members of the general public visiting the academy could read them?
Mr. Barrington D. Parker: Well, I do not know.
I do not believe the record clearly indicates that the government in its reply brief has indicated that these bulletin boards are not available to the public generally and I am not sure exactly what that means?
Chief Justice Warren E. Burger: Well, does that not mean they are available in public?
Mr. Barrington D. Parker: I do not believe it means they are unavailable to the public period or at any time.
I am just --
Chief Justice Warren E. Burger: Well, is that not term --
Mr. Barrington D. Parker: I am just puzzled as to what that means.
Chief Justice Warren E. Burger: I agree it was somewhat ambiguous, but is that not to be read as meaning, it is not available to the general public.
Mr. Barrington D. Parker: I do not believe the record supports that and I did not so read that statement.
Chief Justice Warren E. Burger: Is there any indication on the record that anyone outside has ever had access to it?
Mr. Barrington D. Parker: No and by the same token there is no indication of the other way.
Now, these honor and ethics abstracts are not personnel files.
The Air Force has its own regulations sharply distinguished between medical and personnel files on the one hand and files similar to personnel files on the other hand and state that files relating to disciplinary matters are to be considered similar files and are to be disclosed so long as there is no unwarranted invasion of personal privacy.
Chief Justice Warren E. Burger: But looking to governmental practices in general Mr. Parker, in the Department of Interior and Department of Justice or anywhere else where you have a personnel file presumably on every employee, and there is limited access to that personnel file of course as we know.
If the employee was cited by a superior and subjected to certain charges and administrative hearings were held and that was washed out and he was cleared, would that not go into her personnel file?
I am speaking now of general practices in government?
Mr. Barrington D. Parker: It could.
Unknown Speaker: It is a personnel action, is it not whether he is cleared or whether he is not cleared?
Mr. Barrington D. Parker: Yes Sir.
But we insist that the fact that these case abstracts might initially have been contained in a file which was labeled a personnel file.
It is not dispositive in view of the wide intra-agency distribution that takes place thereafter.
Chief Justice Warren E. Burger: Well, it is not uncommon for one agency whether say the Department of Interior, to ask for access to personnel file of an employee, a lawyer in the Department of Justice, I take it, you are familiar that that is a common governmental practice.
And the reason might well be that the Department of Interior is thinking about hiring this man on their own staff, if they certainly would make an evaluation of any adverse charges or adverse disciplinary actions would they not take that into account?
Mr. Barrington D. Parker: Presumably.
Chief Justice Warren E. Burger: For me, it is pretty difficult to separate charges of this kind from personnel records and personnel files.
Mr. Barrington D. Parker: Well, I think that unless that separation is made, the texture of B(6) becomes completely open ended, because you are then talking about a situation where theoretically a relationship with personal matters can make any document such as the ones here which are widely disseminated for instructive and didactic purposes.
A personnel file and I just do not believe that is what Congress intended when it acted Exemption Two and I think the legislative history would tend to support me on that.
I think when we talk about a personnel file as the term is generally used, we talk about the file that is maintained in the personnel office of an employer or an agency and its other file that contains an employee’s application, his attendance record, the results of a Civil Service Exam or something or information --
Unknown Speaker: Tell me Mr. Parker do you take the position that the fact that these summaries, abstracts are posted on 40 bulletin boards to be seen by 4200 cadets in and of itself takes it necessarily outside the reach of six?
Mr. Barrington D. Parker: I do Your Honor.
Unknown Speaker: Just the fact that is such a broad distribution.
Mr. Barrington D. Parker: When Congress enacted Exemption 6, it was concerned with protecting intimate information about an individual which could be correlated with that individual.
Now, once you open up the file and take documents out and start and post them, I think that consideration has been vitiated.
Justice William H. Rehnquist: Would you read the unwarranted language as modifying personnel and medical files too as well as similar files?
Mr. Barrington D. Parker: Yes Sir.
Justice William H. Rehnquist: You have to give the answer you did to Justice Brennan.
Mr. Barrington D. Parker: Yes Sir.
The qualification clearly unwarranted invasion of personal privacy, modifies personnel files, medical files as well as similar files.
Justice William H. Rehnquist: If you are wrong on that point, then it would seem to me that Congress has given a flat exemption to personnel files.
And that the fact that personnel files might have been publicized in some other way gives no indication that Congress would want the exemption to be less applicable in that situation?
Mr. Barrington D. Parker: Well, that is a hypothetical question and that would be correct Your Honor.
But let me stress that the legislative history of Exemption 6, if we are focusing not on earlier versions or earlier drafts or comments and earlier versions but the Final House and Senate Reports, indicate that Congress did not intend to per se exemption for medical and personnel files.
We quote from the legislative history on page 13 to 14 of our brief but Congress said and I think that their intent is stated here quite clearly that while the exemption is intended to cover detailed records on an individual which can be identified as applying to that individual, the exemption not any particular clause in the exemption but the exemption itself does not apply to the factual matters such as the facts concerning the awards of a pension or benefit or as to statistical type information.
So what Congress and I would also like to emphasize that the Senate Report, the Final Senate Report reaches precisely the same conclusion.
The Senate Report indicates that while highly personal health welfare or selective service records would be generally non-available, factual matters for example reward again of a pension or benefit should be disclosed.
Now, under the government's per se approach here --
Unknown Speaker: Could I interrupt you Mr. Parker?
Mr. Barrington D. Parker: Yes Sir.
Unknown Speaker: Where would you draw the line as to medical files putting personnel files aside?
Where would you draw the line on the medical side as to what is warranted and unwarranted?
Mr. Barrington D. Parker: Well, I would admit that much hard showing would be required to a medical file but by the same token, there could be valuable statistical or factional information in medical files which could and should be disclosed and that disclosure would involve no invasion of personal privacy and is certainly would not --
Unknown Speaker: For example?
Mr. Barrington D. Parker: A clearly unwarranted one.
Unknown Speaker: In a medical file?
Mr. Barrington D. Parker: Suppose for example someone was interested in the geographical radius from which people came to a particular public health service hospital.
Now that is a medical file.
That is information which I think could and should be disclosed and would not compromise anyone’s personnel privacy.
And if you take a look at the legislative history of the 1974 Amendments, Congress squarely recognized not to a kind of a situation and said we do not intend the per se exemption for any of these sub-sections under B of the Freedom of Information Act.
We want --
Unknown Speaker: With all due respect, I think geographical information like that had there has never been regarded as confidential even though it is part of a medical file.
Mr. Barrington D. Parker: Well, under the government’s approach, once it is labeled medical file, you cannot get in it regardless of whether it cannot be disclosed regardless of whether is considered confidential or not.
Unknown Speaker: All right.
I want to know just how far you go or does the fact that cadet might have had mumps in his childhood, is this capable of being divulge under Exemption 6?
Mr. Barrington D. Parker: I think, I might have some problems with divulging that Cadet John Smith had mumps at age 12 but it might be very useful to know that 5% of the cadets at the academy never had mumps or information of that type.
Chief Justice Warren E. Burger: But you do not know whether they would refuse to give that information in the context of this case, do you?
Mr. Barrington D. Parker: No, we do not.
But let me.
I would like to point out to direct Your Honor's attention to the Privacy Act of 1974 which specifically says that statistical and factual information can be disclosed from personnel files, once written assurances are given that the information is to be used for scientific scholarly purposes and after identifying names and references are dealt.
So here we have Congress in 1974 looking at a problem which I suggest was quite similar to the one which we are facing and they said let us let this factual information be made available.
Justice William H. Rehnquist: Well, all they really said was that the Privacy Act would not prohibit being made available.
Mr. Barrington D. Parker: Yes Sir.
Chief Justice Warren E. Burger: That is neutral information though is it not?
Mr. Barrington D. Parker: These sanitized case summaries are neutral information.
Chief Justice Warren E. Burger: We do not know that yet of course.
Now, let me put this hypothetical to you.
Suppose a charge came in that a cadet who was a member of the football squad had accepted bribe in connection with the game and it was sufficiently documented so that it figured an inquiry.
And then the inquiry was held over period of time, I would assume, it could take time.
And he is totally cleared.
Now then if that had occurred during the proposed season, it might well be that the player would be put on the bench during that period.
Even if you sanitized as you put it, if you sanitize that report could not a sophisticated sports writer noticing that this man was out of three successive games for no specifically announced reason, put together that the sanitized file meant that the particular player was the man accused to taking the bribe?
Mr. Barrington D. Parker: Well that is possible but Your Honor that is exactly the kind of analysis that the District Court can and sure undertake in connection with its in camera review and they can ask those some questions and sit down with the academy and see if those associations could be made and on the facts that you just put to me that is likely to be the kind of summary that will not be disclosed.
But we are talking about whether a cadet was asked to resign for cribbing in 1957.
That is the kind of summary from which those associations would be for all intents and purposes impractical.
Chief Justice Warren E. Burger: Now, if District Judges are going to get into that exercises that you described, they are liable to have a good many litigated cases waiting their turn while they are bruising these files.
Mr. Barrington D. Parker: Well, I do not believe that this case presents any particular burden or any particular complexity in that regard, and I would like to emphasize that the 1974 Amendments add a Segregable Records Provision and in Camera Review Provision which provides in Camera Review with respect to all provides that a District Court may conduct such a review with respect to all the exemptions and in addition it says that when you have segregable records or disclosable records mixed with none disclosed for ones or non disclosable portions of the records, they should be looked at in the essentially factual or produce some more materials that should be disclosed.
Unknown Speaker: Are you suggesting that at least under that provision that some files are admittedly a personnel file, and that you would concede that a personnel file, nevertheless, it could be submitted to judge and take through with anything in the personnel file, would not necessarily be the privacy could be disclosed?
Mr. Barrington D. Parker: Yes Sir and that is what Congress said and authorized.
Unknown Speaker: That would be true even if prior to that provision the personnel file was not disclosed?
Mr. Barrington D. Parker: No, I was not talking about in terms of the amendments.
I was talking in terms of the legislative history of the act as it was initially passed.
Congress said that essentially, statistical or factual information in personnel files could be disclosed.
Unknown Speaker: Do you say that in the very opposite and very exemptive stage, they should be able to take through an admitted personnel files?
Mr. Barrington D. Parker: Yes Sir.
Unknown Speaker: In fact, that the materials would not invade any privacy in the view of the judge?
Mr. Barrington D. Parker: Yes Sir.
The legislative history is quite clear on that, I believe.
Unknown Speaker: Even with respect to a medical file?
Mr. Barrington D. Parker: The --
Unknown Speaker: And I assume your point has to be good with respect to medical files too?
Mr. Barrington D. Parker: Yes Sir, it is.
The Solicitor General in his brief emphasized the file such as those maintained by HEW and the Veterans Administration which are essentially personal in nature and legislative history of Exemption 6 indicates that when Congress decided that essentially factual information could be disclosable from files that had precisely those files in mind and we cite this history in our brief.
Justice William H. Rehnquist: Do you say that 1974 Provision that you are relying on in your brief?
Mr. Barrington D. Parker: Yes Sir I believe we do.
In any event, it is a 5(a)(a) --
Justice William H. Rehnquist: Page 15?
15 of your brief, I think.
Unknown Speaker: Mr. Parker, does this record in any way relate to the Honor Codes in the other service academies?
Mr. Barrington D. Parker: No, it does not.
This case pertains exclusively to the Air Force Academy.
Unknown Speaker: That indicate the three systems are the same.
I do not know this.
I think that there is nothing here to indicate that.
Mr. Barrington D. Parker: I do not believe all of the service academies have a toleration clause but the other elements are essentially the same.
Unknown Speaker: Mr. Parker, I gather your study involved here, involves only the Air Force Academy?
Mr. Barrington D. Parker: No, the study involved all of the service academy.
Unknown Speaker: Mr. Parker, my understanding is that an officer who has been found guilty by the Honor Board may if he elects have a hearing before an Officer Review Board and thereafter may have an adversary hearing for Court Martial.
Are the records of those two hearings, public?
Mr. Barrington D. Parker: I do not know the answer to that Your Honor.
The record herein –-
Unknown Speaker: Nothing on the record (Inaudible)
Mr. Barrington D. Parker: I finally like to suggest that under the procedures set forth by the Court of Appeals here no clearly unwarranted invasion of personal privacy is likely to occur.
Now as we said, we requested these files with all names as well as all other identifying references deleted.
The District Court initially held that the disclosure of these files would involve no clearly unwarranted invasion of personal privacy.
The Court of Appeals held that the petitioners had not proved the exemption applied to the summaries and remanded to case for an in camera Inspection.
If the summaries could be successfully redacted or sanitized then they are to be produced.
If they could not be or the to the extent they could not be then they were not required to be produced, and I would like to finally emphasize that this procedure as authorized by the Second Circuit is fully consistent with the Act and with its amendments and it forecloses any reasonable possibility that there would be an invasion of the personal privacy.
Chief Justice Warren E. Burger: Thank you Mr. Parker.
You have about three minutes, two minutes left Mr. Friedman.
Rebuttal of Friedman
Mr. Friedman: I expect my time might have expired Mr. Chief Justice.
Chief Justice Warren E. Burger: We have extended both of your time.
Mr. Friedman: Oh! Thank you.
Well, I have three points that I would like to make very briefly.
First with reference to what happens to these summaries whether they are available for member of the public to see.
I would like to invite the Court’s attention to page 187 of the record, where an affidavit of General Galligan was a commandant of cadets.
He states in the middle of the page of this case summary --
Unknown Speaker: I am sorry Mr. Friedman, that is page?
Mr. Friedman: Page 187 --
Unknown Speaker: Thank you.
Mr. Friedman: -- which is an affidavit by General Galligan who is the commandant of cadets at the Air Force Academy in the middle of page he says, these cases, summaries, and records are not handled indiscriminately at the United States Air Force Academy.
And he says the sole purpose in providing copies to the Cadet Squadron Faculty Departments, mission elements to provide guidance and instruction.
So I think it is pretty clear from this that these things are not generally thrown around the academy that anybody who happens to walk in can see what is going on.
Unknown Speaker: What is the mission element?
Mr. Friedman: Mission?
Unknown Speaker: Mission element.
Oh! That is some military phrase which I take it means a particular group that is handling some kind of program at the Air Force, it might be particular flight training or something like that.
Now secondly, with respect to the 1974 Amendments which Mr. Parker had relied on, the government is not surprising in this Freedom of Information Act cases takes a somewhat different view of the effect of those amendments than he does that I will not go into it at any length.
We have discussed these amendments in a lengthy footnote beginning on the bottom of page 14 of our brief and we do not think that these 1974 Amendments override the specific exemptions.
We do not think if these particular files were exempt, that under the 1974 Amendments, Congress now intended people to search through them and decide what parts are disclosable and what parts are not.
In fact, the history shows that this was intended to be procedural in nature and merely to reflect the existing case law and if I may just say one more thing in close –-
Unknown Speaker: Do you say the amendments change no rule of law at all?
Mr. Friedman: That is the way things are.
Unknown Speaker: As far as disclosability is concerned?
Mr. Friedman: As far as segregating out disclosable and non-disclosable things.
I think with certain matters it did but where you have a situation, whereas we claim the whole file is non-disclosable, we do not think the amendment says.
And then if I may just say one thing in closing.
Mr. Parker referred to the purposes of Exemption 6 which was to protect against disclosure of intimate details of a person's life, that he would not want to have disclosed, we say that is precisely what making public these summaries would do.
Unknown Speaker: But Mr. Friedman, I do not see how the government could really object that if a District Court looked at the personnel file and said this is the kind of information has just been put in here to conceal it and that this is not the kind of information that was normally part of it.
Mr. Friedman: Well, we have no question Mr. Justice.
We have indicated in our brief.
We have no question that a Court could examine something in camera to determine whether it is a personnel file or medical file
Unknown Speaker: What if they look at these summaries and say they are not a personnel file?
They are not in the personnel file.
They are kept somewhere else and they say these are not a personal file because for all sorts of reason.
Mr. Friedman: I would think if the Court would have hold that these are not personnel files but is something else that would be one thing.
But I do not think under this --
Unknown Speaker: Well, that is part of the argument.
Mr. Friedman: Well, the argument as I understand that Mr. Justice, the argument as I understand is not that the Court should examine it in camera to determine if it is a personnel file but to examine it in camera to see whether or not by excising certain material, it can now be safely disclosed.
Unknown Speaker: Well, I know they go that far but I would think, a fortiori, they would say they could examine it to determine whether it is a personnel file?
Mr. Friedman: Yes, but I think if they find that it is a personnel file, I think that is the end of the inquiry because they would take it one step beyond and say it can be senate.
Chief Justice Warren E. Burger: What if the Court found that it was not a personnel file and the judgment have a further step would he not determine whether it was a similar file?
Mr. Friedman: Yes, well, I do not think there is any question that these are if not personnel; similar files that Court of Appeals so treated.
Then he would have the further step I suppose of determining whether the disclosure of this material would result in an unwarranted invasion of personal privacy.
Chief Justice Warren E. Burger: This is a weighing process?
Mr. Friedman: Yes.
Unknown Speaker: Mr. Friedman, may I ask counsel whether the briefs contain a citation to the study which I now understand has been completed?
Mr. Friedman: Yes, there is a citation.
Unknown Speaker: I do not recall it.
Mr. Friedman: Yes, there is a citation in –-
Unknown Speaker: In the red brief?
Mr. Friedman: In our brief I know.
Yes, it is at page 3, Roman 3 of the index of our brief and it is cited at page 5 of our brief.
Unknown Speaker: Thank you Mr. Friedman.
Mr. Friedman: On the caption, Rose etc. et cetera.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.