BALDRIGE v. SHAPIRO
Legal provision: Freedom of Information, Sunshine, or Privacy Act
ORAL ARGUMENT OF ELLIOTT SCHULDER, ESQ., ON BEHALF OF THE PETITIONERS IN NO. 80-1436 AND THE RESPONDENTS IN NO. 80-1781
Chief Justice Burger: We will hear arguments next in Baldrige against Shapiro and McNichols against Baldrige.
Mr. Schulder: Mr. Chief Justice, and may it please the Court, these two cases present the question whether Congress in the Census Act has prohibited the disclosure to local government officials of address lists prepared by the Census Bureau in the course of conducting the decennial census.
Baldrige versus Shapiro involves a request under the Freedom of Information Act for the Bureau's lists of all street addresses of residential units within Essex County, New Jersey.
McNichols versus Baldrige concerns a civil discovery request made during a lawsuit challenging the census results for the Bureau's lists of vacant dwelling units in Denver, Colorado.
We submit that the different factual postures of the two cases should not lead to different results.
Our view is that the language, structure, history, and purpose of the Census Act compel the conclusion that raw census data in the hands of the Census Bureau relating to particular census respondents, including the address data at issue here, may not be disclosed.
My argument will proceed as follows.
First, I will give a brief description of the enumeration procedures employed in the 1980 census.
Second, I will outline the procedural backgrounds of the two cases.
Third, I will explain why the Census Bureau's address lists come within the confidentiality mandate of the Census Act.
Finally, I will show that the confidentiality mandate applies regardless of whether the information is sought under the FOIA or under civil discovery rules.
Unidentified Justice: Mr. Schulder, will your argument include a discussion of the plain language of the statute?
Mr. Schulder: Absolutely, Your Honor.
Unidentified Justice: Perhaps of all the statutes.
Mr. Schulder: The 1980 census, like the two decennial censuses that preceded it, was conducted primarily through the use of the mails.
The Census Bureau mailed out questionnaires for response on or about the census date of April 1st, 1980.
Beforehand, the Bureau had compiled master address registers for each of some 300,000 enumeration districts in the country.
In urban areas an enumeration district consists of fewer than 325 street addresses.
The master address registers are bound books listing separate street addresses for each residential unit, and it includes such information as householders' names, the number of units at that address, whether the unit is vacant or occupied, and the number of persons in each unit.
The appendix to the amicus brief filed by the MDL plaintiffs, the Multi-District Litigation plaintiffs, contains a sample copy of the page from... of a page from the address register, and I refer the Court to that appendix, if the Court is interested in seeing what one of these things actually looks like.
The lists of addresses included in the registers were compiled from commercial mailing lists, census postal checks, pre-enumeration canvassing in the field by census personnel, and from direct responses to census questionnaires and to interviews conducted by census employees during the enumeration process.
After most of the questionnaires were returned, the Bureau conducted two follow-up procedures to check the status of addresses from which responses had not been received, and to check units that originally had been listed as vacant.
The enumerators were instructed not to classify a unit as vacant without verifying that fact through interviews with either the owner or a neighbor.
In addition to these follow-up procedures, the Census Bureau gave local government officials an opportunity to review and comment on the Bureau's population and housing tabulations.
As part of this local review program, the Bureau provided aggregate information for each enumeration district, including the number of housing units, the number of vacant units, and population figures.
In the Shapiro case, Respondent, the executive of Essex County, New Jersey, filed an action under the Freedom of Information Act seeking disclosure of the Census Bureau's address registers for all of the enumeration districts in the county.
Respondent Shapiro contended that as part of his participation in the Bureau's local review program, he needed the address registers in order to compare the Bureau's address lists with the county's lists, and thereby to determine whether the Bureau had counted all of the housing units within Essex County.
The Bureau claimed that the Census Act bars release of all raw census information relating to particular census respondents, including lists containing addresses of buildings in which individuals reside.
And the Bureau further claimed that this information was therefore exempt from disclosure under Exemption 3 of the FOIA.
The district court in an oral opinion held that the Census Act does not bar disclosure of Census Bureau address lists to local government officials seeking to participate in the local review program.
The court ordered the Bureau to disclose its address lists to Respondent Shapiro and his agents.
The court further ordered that the lists were to be edited as far as possible to delete information other than street addresses.
Finally, the court directed that Respondent's agents be sworn to observe the confidentiality requirements of the Census Act.
The third circuit affirmed without opinion.
Unidentified Justice: More or less deputizing them as federal employees.
Mr. Schulder: That's correct, Your Honor.
In McNichols, after the Census Bureau submitted to Denver officials its working figures for each enumeration district as part of the local review program, Denver challenged the Bureau's vacancy figures, claiming that its own vacancy estimates were much lower.
Denver requested the Bureau to produce address lists of all vacant housing units within the city, so that the city could determine the validity of the Bureau's data.
The Bureau refused to turn over the requested information, contending as it did in the Shapiro case that its address lists of housing units are subject to the confidentiality provisions of the Census Act.
Petitioner McNichols, the Mayor of Denver, then filed an action claiming that the Bureau had substantially undercounted Denver's population in reliance on its allegedly arbitrary and unreasonable vacancy figures.
Denver requested discovery of the Bureau's updated address registers.
The Bureau again responded that this material was confidential.
The district court, however, ruled that Denver needed the address registers in order to mount a meaningful challenge to the Bureau's vacancy figures, and did order the Bureau to disclose either the address registers themselves or an address list of vacant units derived from the registers.
The Bureau was directed to delete the names and other information that might identify census respondents.
Unidentified Justice: Did that request fix a time frame with respect to the vacancy?
Mr. Schulder: Well, the district court did stay its order pending appeal, but it did provide... I don't believe there was any specific time frame.
I don't recollect.
Unidentified Justice: Well, isn't it obvious that a property might be occupied in December and vacant in March or January?
Mr. Schulder: Well, the critical date, Your Honor, insofar as the decennial census is concerned, is April 1, 1980, which was the date on which everyone was supposed to have been counted, and as we mentioned in our opening brief in Shapiro, or... no, I believe in--
Unidentified Justice: I am now addressing myself to the request, not to the April 1st date of the Census Bureau.
Did the request fix a narrow time frame, or was it addressed to April 1st?
Mr. Schulder: --The actual request by the petitioners in McNichols was for a list of the follow-up address registers that had been compiled by the Census Bureau.
Those registers, as far as I am aware, were directed as ascertaining the status of individual housing units as of April 1, 1980, the census date.
The Tenth Circuit reversed the district court's discovery order in McNichols.
The court noted that public cooperation with the census depends to a great extent upon the government's promise to keep census information confidential, and it held that both the language and history of the Census Act established that Congress intended, and I quote,
"both a rigid immunity from publication or discovery and a liberal construction of that immunity that would assure confidentiality."
Our argument, in a nutshell, is that the language, structure, history, and purpose of the Census Act's confidentiality provisions all point to the conclusion that the Census Bureau may not reveal raw census data relating to individual census respondents, including address lists.
We have developed these points at length in our briefs, and will not repeat them in detail here.
However, I would like to highlight some key themes.
First, examination of the language and structure of the Act reveals Congress's purpose to erect a wall of confidentiality for identifiable individual census data.
Section 8(b) of the Act provides that the Bureau, or the Secretary of Commerce and his agents, which in this case essentially means the Census Bureau, may disclose numerical tabulations and statistical materials, but there is a very important limitation placed upon that disclosure.
Even numerical tabulations and statistical materials may not be disclosed if that disclosure would reveal information reported by or on behalf of any particular census respondent.
This limiting language serves the same essential purpose as the confidentiality provisions that are contained in Section 9(a) of the Census Act.
Section 9(a)(1) of the Act prohibits the Secretary of Commerce and his agents from using information furnished under the Act for any purpose other than the statistical purposes for which it is supplied.
The local governments in these cases have asserted that they are entitled to the address lists because they wish to use those lists for statistical purposes.
But the Census Act provides that only the Secretary and his agents may use information furnished under the Act, and then only for statistical purposes.
There is no provision for use of this material outside the Census Bureau.
And I might add that in a 1937 report by the Director of the Census Bureau to the Secretary of Commerce, the Director noted that it was then the practice of the Bureau not to... not to employ any outside individuals for the purpose of tabulating the Bureau's statistical information.
Unidentified Justice: Mr. Schulder, I have great problems with the danger of somebody's address being turned loose.
Mr. Schulder: I will turn to that a little bit later, Justice Marshal.
Unidentified Justice: All right, fine.
Mr. Schulder: In any event, even if disclosure to local officials challenging the census may be deemed a statistical purpose, our submission is that disclosure is nevertheless barred under other provisions of the Census Act.
Section 9(a)(2) of the Act bars any publication whereby the data furnished by any particular census respondent can be identified.
The local governments in these cases have argued that the Census Act bars only disclosures that would identify individual census respondents, and that they seek not names but merely addresses.
But this contention ignores the language of Section 9(a)(2) which prohibits the Secretary from making any publication that could identify the data furnished by any particular establishment or individual.
Unidentified Justice: Mr. Schulder, if we go along with you on your desired broad interpretation of 9(a)(1), aren't we in effect making (a)(2) and (a)(3) superfluous?
Mr. Schulder: Not necessarily, Your Honor.
The point of all of these provisions in Section 9(a) is that Congress wanted to make it clear and meant to leave no room for doubt that all raw census data within the hands Census Bureau could not be disclosed to outside persons.
Unidentified Justice: So even if they overlap, it is in your favor.
Mr. Schulder: That is absolutely correct.
Unidentified Justice: First to (1), would you say that if the court ordered the Census Bureau to turn over an address list, would the Census Bureau be making use of that address list within the meaning of 9(a)(1)?
Mr. Schulder: We submit that the disclosure of this information would come under the term "use".
Unidentified Justice: Would be a use?
Would be a use?
Mr. Schulder: That's correct, and one that is inconsistent with the whole purpose and statutory scheme.
Unidentified Justice: Then of course Justice Blackmun would be right.
If that is a use, then you don't need anything else--
Mr. Schulder: That's correct.
Unidentified Justice: --And then under Number (2), would you tell me... maybe this overlaps Justice Marshal's question, but how is the disclosure of an address list... does that in any way come within (2), any particular establishment or... how does that relate to any individual?
Mr. Schulder: Well, the--
Unidentified Justice: How does it relate... how does it make any publication whereby the data furnished by any particular establishment or individual under this title can be identified?
How, by looking at an address list, could you identify the source of the address?
Mr. Schulder: --The point is that this particular provision does not only bar disclosures that could lead to identification of the source of the information.
Unidentified Justice: That is what it says.
Mr. Schulder: --No, it bars... it bars any disclosure that could lead to identification of the data furnished by any particular establishment or individual.
It doesn't go solely to identifying names of census respondents.
Unidentified Justice: Well, then, what you are saying is that it really precludes all disclosure, because any disclosure would include some data that came from somebody.
Mr. Schulder: Well, precisely.
Our point is that any--
Unidentified Justice: It is a rather strange way to write that kind of a--
Mr. Schulder: --Well, that may be true.
These particular provisions of the statute were developed in the early part of this century.
Some of them were added at different stages along the way, but the point of the statutes and the legislative history bears this out, is that each time that an additional provision was added to the Census Act, Congress made it clear that it was attempting to tighten the confidentiality provisions.
Unidentified Justice: --I thought that all would be consistent with the view that they were attempting to avoid the disclosure of individual responses, the copy of the census report and that sort of thing.
Mr. Schulder: That's true, but that... that's true in part, but--
Unidentified Justice: This language surely reads that way.
Mr. Schulder: --Well, street address information is recorded on individual responses.
Unidentified Justice: Right.
Mr. Schulder: And the mere fact that the local governments in these cases have asked--
Unidentified Justice: But giving a list of addresses doesn't really tell you anything about what was in the response other than the fact that that address obviously was--
Mr. Schulder: --Well, except for the fact that each of the addresses that are listed disclosed the fact that those addresses contain residential dwelling units.
Unidentified Justice: --But it doesn't necessarily indicate that a particular address was learned through a response.
It might have also been learned by the census taker going out and looking at the building.
Mr. Schulder: Well--
Unidentified Justice: Isn't that true?
Mr. Schulder: --That's true, but--
Unidentified Justice: And if all you give is a bunch of addresses, how does that tell anybody who just has that list which ones were provided by individual responses, and which ones were obtained by observation?
Mr. Schulder: --Well, the point is that most of the information here, most of the street addresses were actually either confirmed--
Unidentified Justice: But you can't tell from the list which ones were.
Mr. Schulder: --You can't... no, that's true, that you can't.
Unidentified Justice: But under the instructions given to the census takers, would they have been justified in listing an address as occupied by simply looking, say, at a number plate on a door and saying, there's a building, it must have--
Mr. Schulder: Absolutely not, Justice Rehnquist.
The enumerators were specifically instructed, and the record in the McNichols case bears this out, that before they could list an address as vacant, they had to confirm that information either with a neighbor or with the owner of the property in question.
So there was information even as to vacant units that was derived from responses to inquiries conducted by census employees.
Section 9(a)(3) of the statute prohibits anyone other than sworn officers of the Department of Commerce or the Census Bureau to examine individual reports.
The local governments contend that they do not wish to examine the individual census reports, which they agree may not be disclosed, but the address registers are a compilation of address data that appear on individual reports.
In many cases, addresses are added to the registers solely as a result of the reports, and the reports, as I indicated earlier, also verify address information obtained by the Bureau from other sources.
It is hard to believe that Congress meant on the one hand to prohibit examination of raw information in individual reports and on the other to permit the examination of the same information after it is transferred to a different piece of paper.
Unidentified Justice: --Well, unless their interest was in protecting individuals from having their own private information disclosed.
They don't want to know... The individual presumably has an interest in not being identified as the source of any information, and it seems to me that interest is protected by a literal reading of the statute.
Isn't there a difference between knowing whether I told the census taker something and having the census taker report the fact?
Mr. Schulder: --It may not be possible to, as you indicated earlier, Justice Stevens, to ascertain... certainly the address registers don't indicate the particular source of the information, and as I will develop a little bit later, the whole purpose underlying these provisions would be undercut by any type of exceptions to the confidentiality provisions that the local governments propose in these cases.
Section 9(b) confirms the broad scope of these confidentiality protections that are contained in 9(a) of the Census Act.
Section 9(b) refers to the provisions of 9(a), and I quote, "relating to the confidential treatment" of data for particular individuals and establishments,
"and the whole theme of erecting a wall of confidentiality is underscored by other provisions in the Act."
For example, Section 1 of the Act, the definitional section, has a very broad definition of respondent that defines a respondent as any individual, organization, or entity that reports information or on behalf of whom information is reported.
Section 6 of the Act provides that to the extent possible, the Census Bureau is to obtain information from sources other than individual respondents.
The purpose of that provision was to limit the burden on respondents for having to respond to census inquiries.
It seems to me difficult to believe that Congress meant to subject the information obtained from other sources to disclosure merely because it may have been obtained from other sources.
It would be inconsistent with the purpose of reducing the respondent burden and heightening the privacy protections of the Act to say that information obtained from other sources could be disclosed, whereas information obtained only from the census respondents themselves could not be disclosed.
The legislative history of the Census Act, of the FOIA, and of the Privacy Act also support our reading of the statute.
The history of the Census Act shows that over the years Congress has continuously tightened the confidentiality protections of the Act.
Early in this century, in 1909, Congress provided the first explicit provision that is the forerunner of Section 9(a), which was applicable only to industrial establishments and mining establishments.
That provision prohibited the Secretary from using information obtained under the purposes of the Act and of permitting anyone other than the sworn employees to examine the reports.
Unidentified Justice: Mr. Schulder, how far did the recent legislation in Congress go which was designed to authorize release of data to state or local government officials?
Did it get out of committee?
Mr. Schulder: I don't believe it did, Your Honor.
We have referred to it in our reply brief in the Shapiro case.
Unidentified Justice: Yes, but I wasn't sure how far it had progressed in the Congress.
Mr. Schulder: I don't believe it had gotten out of committee.
In 1919, Congress enacted additional legislation that is the forerunner of Section 8(c) of the Act.
That legislation provided essentially that information could not be used to the detriment of any respondent or other person to whom the information related.
Now, that might lead someone to argue that since Congress inserted a specific provision forbidding use to the detriment of any individual, that Congress thereby recognized that certain information could be disclosed, but the point of fact is that the legislative history of this provision in 1919 specifically underscores the fact that Congress did not mean by this provision to imply that there was any kind of disclosure permitted under the Act.
Unidentified Justice: To what extent, if any, is the confidential status of this information based on the proposition that the Census Bureau must get on with the job, and do it within a reasonable time after the cutoff date?
Mr. Schulder: Well, I was just about to address, Your Honor, the basic purposes of these provisions.
The first purpose, of course, is to protect the privacy of census respondents, but the confidentiality mandate of the Census Act goes beyond ordinary privacy considerations.
Much of the census information that is being sought in this case or that is collected by the Census Bureau is not inherently private.
It is the sort of information that an individual could gather by walking down the street and making inquiries, as we indicated in our opening brief in Shapiro at Pages 34 to 36.
The point is here, though, that the major purpose of these confidentiality provisions, and this is borne out by the case law examining the statute and by the legislative history, is that the confidentiality mandate of the Act is meant to assure the public that the information they submit will be kept secret, and by doing this, Congress sought to encourage public cooperation with the census.
Without that public cooperation, the ability of the Census Bureau to collect information--
Unidentified Justice: When I get this form, I want to be sure that what I give them will be confidential, but once I get the form I know that my address is not confidential, don't I?
Because my address is on it.
Mr. Schulder: --Well, you know that the Census Bureau has ascertained--
Unidentified Justice: And the postman and everybody else who handled it.
Mr. Schulder: --That's correct.
Well, the point I am making is that not--
Unidentified Justice: But nobody else can get that?
You are protecting me from disclosing my address.
Mr. Schulder: --No, other sources may be able to get that information, but my point is--
Unidentified Justice: Maybe it is for sale.
Mr. Schulder: --That's correct, but the point--
Unidentified Justice: In any town you can buy an address list.
Mr. Schulder: --Correct.
Unidentified Justice: So what is so confidential about it?
Mr. Schulder: The problem is that if the information... if this sort of information were disclosed by the Census Bureau, if this Court were to hold that the Census Act allowed the disclosure of this particular information, which is information relating to particular individuals, and information that is confirmed by particular individuals in the course of the census process--
Unidentified Justice: And what they bought on the public market.
Mr. Schulder: --But the information is--
Unidentified Justice: Isn't that true?
Mr. Schulder: --In some cases, that's correct, but in many cases the information is corrected or updated by direct responses to the census itself.
The point is that the public is not going to... the public, if it hears of a decision of this Court mandating broad disclosure of even this type of information, the public is not going to be sophisticated enough to differentiate between one form of disclosure and another, and Congress recognized this in erecting these broad confidentiality provisions of the Census Act.
Unidentified Justice: Are all of these communications, are the forms sent addressed to a person by name or in some instances is it to the occupant of 1370 Osceola Avenue?
Mr. Schulder: I am not certain about how the address--
Unidentified Justice: Can the Census Bureau conceivably have the names of every person in the United States in relation to a particular street address before they conduct the census?
Mr. Schulder: --It probably does not, Your Honor.
Unidentified Justice: So in many cases it must go to the occupant of a particular address.
Mr. Schulder: I would think that that would probably occur in at least a number of cases, sure.
Unidentified Justice: And what they are trying to find out, among other things, is the identity of the occupant of the particular named address.
Mr. Schulder: Or whether the address is occupied at all.
Unidentified Justice: Is that in this case?
I thought this case was limited to addresses only.
Mr. Schulder: Well, there are two cases, Justice Marshal.
The Shapiro case from New Jersey involves a list of all residential addresses within Essex County, New Jersey.
Unidentified Justice: Any names?
Mr. Schulder: Well, the district--
Unidentified Justice: No.
Mr. Schulder: --The district court's order provides or directs that to the extent possible names or other identifying information should be deleted.
Unidentified Justice: Right.
I thought that's what the case was about.
Mr. Schulder: The second case, the one from Denver, the McNichols case, involves a disclosure order directed at vacant housing units within the city of Denver.
Unidentified Justice: Then neither involves names, as I understand it.
Would you agree that if the addresses are not protected from disclosure by the statute, that it would be a proper interpretation of FOIA to require the government to delete the names?
I think the lower court said that.
Mr. Schulder: I believe that would be true.
Unidentified Justice: So the only question then is whether the addresses are confidential, and the question of whether it is a pain in the neck to have to straighten out the list is irrelevant, because I assume there would be some burden involved.
Mr. Schulder: Well, we have made the point that there would be a burden--
Unidentified Justice: Yes.
Mr. Schulder: --but we don't defend on that ground.
We simply point it out to the Court.
Unidentified Justice: The bottom line issue is whether a bare list of addresses which has been obtained in this way is disclosable or not, isn't it.
Mr. Schulder: That's correct, and I think at this point it is worth making the point that disclosure of this information could conceivably have harmful effects to individuals who have cooperated with the census process.
Unidentified Justice: Might it also not have harmful effects in that we get the 1980 decennial census in 1988, too?
Mr. Schulder: Of course, that is another of the problems involved in this... in this and other cases that have raised questions concerning the conduct of the census, but I do want to make the point that disclosure that certain buildings are used as residences, may be used to the detriment of individuals who are occupying buildings that are zoned for commercial use only, or that are occupying multi-unit structures that are in an area that is zoned only for single-unit use, and similar--
Unidentified Justice: Or that are illegal aliens?
Mr. Schulder: --Excuse me?
Unidentified Justice: Or that are illegal aliens?
Mr. Schulder: Well, the information provided here might eventually lead to disclosure of the fact that the occupants of the premises are in fact illegal aliens, or are welfare recipients who don't necessary quality for benefits, and numerous other--
Unidentified Justice: How could that follow from just giving an address out?
I don't understand.
Giving an address doesn't tell you how many people live there, or anything about--
--Or their citizenship.
Mr. Schulder: --Well, giving an address will reveal how many units are at a particular location, because there is a separate address listing for each unit, so if the registers provide, for example, five units with the same address, that will reveal to local officials that there are in fact five dwelling units within that building, and in an area which might be zoned for two or only one unit, it would reveal a violation of a zoning ordinance.
Unidentified Justice: Couldn't they also get that from a private firm?
Mr. Schulder: Oh, they certainly might be able to get that information from a private firm, but--
Unidentified Justice: Well, isn't it available in every city?
Mr. Schulder: --But there is no Census Act with confidentiality provisions that applies to private firms.
The Census Act applies to the Secretary of Commerce and his agents, including the Census Bureau.
This Court in St. Regis recognized the fact that census information in the hands of the Census Bureau is immune from discovery.
It is because of the statute and because Congress recognized the need for confidentiality that we are in this Court today.
Unidentified Justice: And presumably likewise the plaintiffs here could have gone out and bought anything for sale on the open market.
Mr. Schulder: Oh, no question about that, Your Honor, and in fact the plaintiffs were, I am sure, able to develop their own address lists based on tax, local taxes and various other local government activities.
There is no question that they had numerous other sources for the same information.
One of the points we are trying to make here is that each of these local governments is trying to carve out a special exception, a special narrow exception to the Census Act's confidentiality mandate.
For example, Respondent Shapiro argues that unlike the petitioners in McNichols, he should be entitled to disclosure of address lists, because those lists will not reveal the occupancy status of a building.
The McNichol petitioners, on the other hand, claim that disclosure of addresses of vacant dwellings is permissible because that information supposedly concerns non-existent persons.
These approaches demonstrate the unworkability of a policy providing for a limited, piecemeal disclosure.
The next case that may come down the road will seek yet another exception to the confidentiality provisions of the Act.
Exceptions of this sort would undermine the confidence of the public in the security of census information in the hands of the Census Bureau, and in the long run would reduce census accuracy by deterring numerous persons from cooperating in the census.
We submit that our construction of the statute, unlike that of the local governments in these cases, is both workable and consistent with the language and history of the statute.
Because the Census Act absolutely bars disclosure of the information at issue here, there can be no exceptions of the sort urged by the local governments, regardless of whether the information is sought under the FOIA or under civil discovery rules, and regardless of the motives of the particular local government seeking the information.
Under the FOIA, if a particular matter is exempt from disclosure, the FOIA simply does not apply, and the needs of a requester are irrelevant.
Similarly, under the civil discovery rules, privileged matter is not discoverable.
In the Census Act, as we have argued, and as we argue more fully in our brief in the McNichols case, Congress established an absolute privilege barring official disclosure of raw census data relating to individual respondents.
Thus, Congress has already struck the balance, and there is no occasion to balance a party's need for this information against the public's need to preserve confidentiality in a particular case.
Finally, even if the needs of the particular requesters here were relevant, they are not sufficient to overcome the important public policy against disclosure.
As I indicated at the outset of my argument, in its local review program, the Census Bureau provided local governments with aggregate statistical information on housing, vacancies, and population for each enumeration district, and as I pointed out earlier, enumeration districts constitute very small geographical units within urban areas, less than 325 street addresses.
Now, the local review program was established to enable local officials to provide information to the Bureau, and was not intended to provide local governments with an opportunity to conduct what would amount to an internal audit of the Bureau's operations.
There is no reason why Essex County and Denver could not have participated in the local review program in a meaningful way without access to confidential census information.
For the reasons I have stated today and those articulated in our briefs, we submit that the Court should reverse the judgment of the Third Circuit in Shapiro and affirm the judgment of the Tenth Circuit in McNichols.
I would like to reserve the balance of my time for rebuttal.
Chief Justice Burger: Mr. Ben-Asher.
ORAL ARGUMENT OF DAVID H. BEN-ASHER, ESQ., ON BEHALF OF THE RESPONDENT IN NO. 80-1436
Mr. Ben-Asher: Mr. Chief Justice, and may it please the Court, the issue before this Court is one of first impression, and it is most properly framed as follows.
Is a bare list of undifferentiated street addresses in the possession of the United States Bureau of the Census absolutely privileged from disclosure and furnishing under the Freedom of Information Act.
Our position is that Title 13 does not provide a blanket of confidentiality for all census materials, but rather is restricted exclusively to barring disclosure of information which would identify any individual census respondent.
That is the conclusion which has been reached by the Third Circuit, by the concurring opinion of Judge Stevens in the Second Circuit in Carey versus Klutznick, and by the district courts of Colorado, New York, and New Jersey.
What the county of Essex is not seeking in this case is access to vacancy information, to use information, to occupancy information, or as to units, and it is not seeking discovery, and it is not seeking at this juncture to challenge the validity of the census.
Rather, the county's purpose is to ascertain what addresses, if any, have been overlooked by the Bureau, with the result that those addresses would not have been canvassed, and any persons residing within those addresses would not have been included, and the census resulting in an undercount.
The starting point in the analysis of this request of necessity must be the Freedom of Information Act, and that is a statute which stands high in the hierarchy of various legislative enactments in this area.
The clear mandate of that statute is full public access to government records, subject only to very carefully delineated exceptions, which must be narrowly construed and which the government has the burden of establishing in every case.
Unidentified Justice: What do you make of the colloquy between Mr. McCloskey and Ms. Abzug on the floor during the '74 amendments about the census information?
Mr. Ben-Asher: The 1974 amendments, Your Honor, were fairly narrow.
Unidentified Justice: It is on Page 18 of the government's brief.
Mr. Ben-Asher: The emphasis there, Your Honor, was assuring that the Freedom of Information Act would not involve further incursions into whatever privileges and confidentiality was established by the exception to the Census Act, and that is the theme which runs throughout the entire legislative history.
Well, there has been a certain narrowing of the exception.
It has always been a carefully constructed one, so as to avoid a ban on all census data, which would have been a rather facile means of accomplishing that result had it been intended by Congress, but rather, a focusing on how that information might be damaging to an individual, and to what extent it might reveal his or her identity.
The thrust of the Freedom of Information Act is to create, in effect, a presumption that information is disclosable to the public because it is so critical to the public's participation in the governmental process in a democracy as the nature of government--
Unidentified Justice: Did you submit to the order of secrecy upon counsel?
Mr. Ben-Asher: --No, Justice White.
That order was by the court--
Unidentified Justice: I take it if you win, I mean, if your submission is accepted, the information that was requested is public information.
Mr. Ben-Asher: --That is correct.
It is our position that that--
Unidentified Justice: Although in both instances the... in both cases there was an order of secrecy imposed, wasn't there?
Mr. Ben-Asher: --That's correct.
It is our position that that order was not required, though it is authoritized because Section 23 of the Census Act expressly provides that local government officials may be sworn in to the extent that they are assisting the Bureau.
Unidentified Justice: But not sworn by the federal courts.
Mr. Ben-Asher: No, they would take an oath in the Bureau not to reveal information, to which oath various consequences would attach.
Unidentified Justice: And directed by the federal courts.
Mr. Ben-Asher: It might be directed in a discovery context, or in a Freedom of Information Act litigation context, but certainly not if Freedom of Information Act requests were honored directly by the governmental agency.
Unidentified Justice: Would it be of any value to, let us say, a real estate operator, to find out all the vacant houses on April 1st in Newark, New Jersey, or any other place?
Conceivably, would that be of some value to a real estate operator, or developer?
Mr. Ben-Asher: It conceivably could be.
Vacancy information is not sought by the county of Essex in this case, and there is--
Unidentified Justice: Could they get it under the same procedure that you are suggesting here?
Could a real estate man say, I want this information for my own use?
Mr. Ben-Asher: --It is our position that vacancy data would not be included within the category of information that discloses information about individuals, but I would concede that it goes further towards reaching that line than does the bare address information, which is undifferentiated as to use or occupancy, which is being sought by the county.
Unidentified Justice: How is it being protected if it were given to your clients?
Is it then... is there any protection for the secrecy of that information after it is released by the Census Bureau?
Mr. Ben-Asher: Under the district court's order herein, yes.
Under the position for which we contend it would not be protected beyond--
Unidentified Justice: How long do you think that realistically that would be effective, to keep it out of the hands of real estate speculators, contractors wanting to renovate vacant houses, or speculators wanting to buy vacant houses?
Mr. Ben-Asher: --It would not be effective, and it should not be effective because the data on its face does not provide any information as to individuals, and that is the prescription in the exceptions to the Census Act.
By the same token, as perhaps I will discuss later, much of the block data which is published by the Census Bureau as part of its decennial census reveals as much as if not more information that could be utilized in that manner, presuming some kind of herculean investigatory effort on the part of members of the public who might choose to treat information in that manner, but it would not be a manner which would be harmful to individual census respondents or to the confidentiality purposes of the statute.
The primary purpose of Congress, as this Court has enunciated in enacting the Freedom of Information Act, was to assure that government would not attempt to hide its mistakes, and that is precisely the purpose which the county in this case is attempting to avoid, to engage in this process and meaningfully participate in the review process so as to help assure that there will not be an undercount in such a critical area in which the Constitution has directed enactment of this statutory scheme for the purposes--
Unidentified Justice: Did the government raise any theme of in pari delicto against Essex County about hiding mistakes?
Mr. Ben-Asher: --Did the government make an allegation that Essex County had--
Unidentified Justice: Yes, that Essex County had also made some mistakes in the past?
Mr. Ben-Asher: --I don't recall any such allegation.
In fact, when local review figures were submitted by the county without the benefit of the address lists in the first stage of local review approximately 30,000 individuals were added to the count for Essex County.
So, disclosure under the Freedom of Information Act is the general rule.
The exception is one which the government must establish under its burden, and it must do so in a de novo trial, in which there is an opportunity to challenge and obtain judicial review of their determinations.
The Census Act itself, which is at the heart of the determination which this Court must make, is one which must be examined in the context of the recognition that it is the interest of the citizenry as opposed to the interest of the Bureau which is primary, and that the confidentiality provisions of the statute were enacted precisely for the purpose of ensuring that there would be an accurate census and that individual would participate in that census.
Section 9, 9(a) of that statute is one which is exclusively directed towards affecting the activities of Census Bureau personnel.
That is, that they should not engage in abuses with that information when it is in their hands, such as using it for personal gain, not that it should affect the public.
That section has nothing to do with disclosure.
Even the petitioners concede in their court of appeals brief that 9(a)(1) is not intended to create standards and criteria for release of information to the public.
This Court has directed itself and concurred in that conclusion in the St. Regis case, and the express introductory language to 9(a) indicates that.
If in fact 9(a)(1) were construed to apply to the citizenry, then citizens could only use published census data to the extent that it was not used for non-statistical purposes, and that is not a workable standard, and it is not one that the Congress conceivably could have intended once information was in the hands of the public.
So, it is our position that it is irrelevant whether or not there is a statistical purpose on the part of an inquirer under the statute.
Alternatively, if Section 9(a) does require a statistical purpose, it is clear that the purpose of Essex County in this case is statistical in nature because it is directed towards enhancing the accuracy of the enumeration, the precise goal for which the Bureau was created.
Whatever the meaning of Section 9, it describes Section 8 as the exception to its prohibitions, and because 9 does not prohibit the disclosure of this information we need not reach the question as to whether Section 8 permits it.
Rather, the authorization section here for this disclosure is the Freedom of Information Act, but Section 8(b) does require the disclosure of statistical materials, and any reasonable reading of that term semantically must conclude that the address lists are indeed statistical materials.
Unidentified Justice: Mr. Ben-Asher, how about Section 9(a)(2), though, that refers to the data that is furnished to the Census Bureau?
Mr. Ben-Asher: Justice O'Connor, our reading of 9(a)(2) is that it applies only to the Bureau, but that we must carefully examine its content--
Unidentified Justice: Well, of course--
Mr. Ben-Asher: --because it helps us interpret the meaning of 9--
Unidentified Justice: --New Jersey, of course, is going to the Bureau to get the information, and therefore we run into the problem.
The Bureau may not release it, and data must mean something other than names of individuals, I suppose.
Mr. Ben-Asher: --Yes, and certainly the county does not contend that, as the government represents, that it is limited to individuals.
The interpretation of 9(a)(2), to the extent that that language helps us construe the meaning of the prohibitions in 8(b) is critical to the case, you are correct, and it is our position that in referring to that data, Congress intended to bar the disclosure of information which would identify any particular individual.
The government argues that 9(a)(2) means that what is prescribed as the disclosure of identifiable data relating to individuals.
Well, of course, all census data relates to individuals, but that test is more amorphous and more unworkable and less in keeping with the legislative intent than is the test for which we contend and which appears more in keeping with the language of the statute on its face.
Our test presents no greater difficulty in application, but of course that is not the only standard.
The Congressional intent is the standard.
Unidentified Justice: Would you state again what your test is under 9(a)(2)?
Mr. Ben-Asher: Our test is whether the data reveals... whether it identifies a particular individual, and that is the theme that runs throughout the legislative history and the language of 9--
Unidentified Justice: Whether it identifies a particular individual, and not whether it identifies a particular individual as the source of the data.
Mr. Ben-Asher: --No.
The source is not the focus.
And the location of the data in the records is not the basis for the inquiry.
The question is as to what it discloses, what the nature and content of that data is.
Unidentified Justice: Is that perhaps a little bit of a distortion of the plain language when it says the data furnished by an individual?
Mr. Ben-Asher: There are difficulties that all the parties have with the plain language of the statute here, not only because it is vague, but because some of its literal interpretation leads to absurd results.
For example, as you point out, if what was precluded was information that was submitted by an individual, then in fact the Bureau would be incapable of publishing its decennial census, because that--
Unidentified Justice: Other than it is permitted to do so by another section.
Mr. Ben-Asher: --Well, the authority section here is 8(b), and that includes the standard for which we contend.
If the... by the same token, the United States contends that our position is that if the information appears on any document other than the report itself, that it is disclosable.
But of course again that is not our position.
We are focusing on the content of the information as opposed to its location, and St. Regis dealt, Justice O'Connor, with the point you raise as to the meaning of 9(a)(2).
I think the reference in the St. Regis case by this Court to that statute is even a narrower reading than the one for which the county contends, because there it was characterized as referring to the name or identity of those furnishing information being revealed.
The Bureau implies that if information can lead to further information about an individual, it would be barred under the meaning of the exception to the Census Act.
Unidentified Justice: May I interrupt you once more?
It seems to me your reading of the section means you lose, because under your reading, as I understand it, if some of the addresses on the list were furnished by an individual, that would be data relating to a particular individual, and as you read the statute that is the end of the case.
Mr. Ben-Asher: No, any data which is submitted by an individual is not prohibited from disclosure.
It is only if it identifies an individual.
I think we have made that clear throughout our brief and my argument.
Unidentified Justice: But it doesn't say that, does it?
Mr. Ben-Asher: Neither does the statute expressly utilize the language which the Bureau is contending for, but what we are attempting here to do and what the Court's duty to do is to construe the language in a common sense way in light of the legislative history and its practical application, and what we have said is that if that section is applied mechanically, it would bar our information, but it would also bar the Bureau from publishing the forms which it generally publishes as a result of the decennial census.
Unidentified Justice: Let me get to one point.
You want all of the addresses that they have, period.
Mr. Ben-Asher: What we are asking for, Justice Marshal, is the comprehensive master address register which the Bureau maintains as it exists at the time of a request under the Freedom of Information Act.
Unidentified Justice: And what is on that list?
Mr. Ben-Asher: What is on that list are a number of items which are correctly characterized by the government, but we are not seeking all of the items on that register.
We are only seeking what is found in Column 2 and 3 of the sample master address register which is attached to the multi-district litigation brief, which is that showing the number of a lot and the street name of the lot.
That is exclusively what we have sought throughout this case.
Unidentified Justice: Isn't that list available in Essex County?
Mr. Ben-Asher: There are various versions of lists that are available from various sources, but what has not been available to this point is the Bureau's address list, and that is the one that the government correctly characterizes as being at the core of the census process.
Unidentified Justice: You want the government's list rather than the list.
Mr. Ben-Asher: We don't want the list.
We want the list as it has been redacted to remove all material, literally every source of material and nature of material other than the addresses themselves.
Unidentified Justice: Then you do want something that they have.
Mr. Ben-Asher: Oh, without question, and which only they have.
Unidentified Justice: And some of their work.
Mr. Ben-Asher: Which is--
Unidentified Justice: Some of their work.
Mr. Ben-Asher: --Well, I don't know what degree of work is--
Unidentified Justice: It is some of the work of the Census Bureau.
Mr. Ben-Asher: --It has been compiled by a number of sources.
Unidentified Justice: Well, how do you get it on a sheet except by work?
The Bureau put it on a sheet, didn't they?
Mr. Ben-Asher: It did, and it gathered that information from a number of sources.
Unidentified Justice: Now I am getting worried, because as I understand it Congress wants to protect everything that they did.
Mr. Ben-Asher: Well, there is nothing to--
Unidentified Justice: And I thought all you wanted was something that somebody else gave them.
But now I find you want what they did, and that to me is a problem.
Mr. Ben-Asher: --It is information that was given to them by postal inspectors.
Unidentified Justice: But that to me is a problem for you, which is, what you want is their work.
Mr. Ben-Asher: Well, to the extent that human effort is involved in mechanically collecting these addresses, that's correct.
It's from a number of sources.
It is pre-collected in effect and represents a passive effort of the Bureau to a certain extent, but it is our contention that that is not the test.
The ultimate question under the Act is whether the data identifies individuals, and that it does not do here.
Their list of street addresses will not disclose the identity of an individual who provided information, the identity of the people who live there, how many live there, whether anyone lives there, whether there is a dwelling there, whether it is used for a residential purpose, whether it is vacant or occupied.
None of that information is being sought by us.
The information being sought is entirely innocuous.
It tells us nothing about individuals, and it is disclosure which should not discourage the public from participating in the census, and of course their attitude is critical, but no... it can't be reasonably assumed that individuals are encouraged to participate--
Unidentified Justice: Couldn't an individual assume that if you this year disclose my address, the next year you will disclose something else?
Mr. Ben-Asher: --Only if this Court holds in our favor and it is prepared next year to hold that further information is permissible.
Unidentified Justice: Then the person could say that we want confidentiality, and we will cooperate provided what we do is confidential, and this Court says, well, all of it is confidential but your address, and next time this Court says, all is confidential but your name, and then the next is, all is confidential but your occupation.
Mr. Ben-Asher: Well, clearly information--
Unidentified Justice: I am talking about, a person... don't people think that once you begin to give up something, you... you know, the old finger in the dike business?
Mr. Ben-Asher: --I think that it is reasonable conclude, Mr. Justice, that individuals participate in the census not because they are sure that there will be no census data whatsoever disclosed to the public in the course of the census, but that they will be not identified or penalized.
It would be paranoic for an individual to unrealistically speculate that because a federal bureau has the designation of the property on which he may live--
Unidentified Justice: Do you agree that Congress doesn't agree with you?
Mr. Ben-Asher: --There is nothing in the legislative history to indicate that they do anything but agree with us in terms of the standard as to identifying individuals.
Unidentified Justice: I thought it was clear from the legislative history that they intended to protect all of the confidentiality they could protect in the Census Bureau.
Mr. Ben-Asher: That is a result which they could have brought about very easily by simply prescribing the release--
Unidentified Justice: But was that their purpose in mind?
Mr. Ben-Asher: --No, the purpose of the Congress was to preclude the disclosure of individually identifiable data which would be harmful to an individual.
Unidentified Justice: Mr. Ben-Asher, on that point, after the St. Regis paper case, in which this Court said that certain copies of census reports kept by a business establishment could be... were not immune from judicial process, Congress in effect overruled this Court's holding, did it not?
And it indicated when it did that that it changed this Court's ruling to add further protection of privacy.
Now, let me read you from the Senate report, and then ask you to comment on that, where it explained that it was doing this to ensure that the authority of the Secretary of Commerce to furnish statistical tabulations or other material to public and private entities does not extend to any material which might disclose information reported by or on behalf of any respondent.
Isn't that a pretty clear statement?
Mr. Ben-Asher: I think the language of the statute is even clearer.
The amendment was a very narrow one, directed towards precluding disclosure of a very narrow category of information.
The holding of this Court in St. Regis was a broad one, to the effect that 9(a)(1) and the 9(a) sections applied only to the government, and that the statute did not generally clothe census data with confidentiality,--
The response of the Congress could have... I see that my time is up, unless I may complete my response.
Unidentified Justice: Well, I think you can respond to my question, if you would, Mr. Ben-Asher.
Mr. Ben-Asher: Congress when it accomplished that 1962 amendment did not rethink or clarify the fundamental nature of the exception in the statute, as it could have easily by simply prescribing release of any census data.
Rather, its response was a very narrow one, to indicate that census reports themselves in the hands of individuals could not be the subject of process by courts and agencies.
Unidentified Justice: Thank you.
Chief Justice Burger: Mr. Cerrone?
ORAL ARGUMENT OF GEORGE J. CERRONE, JR., ESQ., ON BEHALF OF THE PETITIONERS IN NO. 80-1781
Mr. Cerrone: Mr. Chief Justice, and may it please the Court, the government's counsel has indicated to the Court the general chronological order of events in the McNichols case.
If I may, I would add only very briefly to his description.
One of the very important things that happened during the census or just subsequent to the actual census day in Colorado as well as all through the nation is what was enumerated or described as a local review program.
This local review program has been mentioned by the government as being an opportunity wherein the local governments and local officials can participate in the review of the census.
One of the things that is in the record, and which I feel obligated to bring forward to the Court, is the fact that whether or not and to what extent living units were vacant could not be discussed was not an issue in the local review program.
Subsequent to that, the city and county of Denver did file our action, and have made our request, but prior to making our request, we had a hearing before the district court on our application for a preliminary injunction.
At that hearing, we presented evidence showing very clearly, I believe, that the total count of the population of the city and county of Denver was too low, and the total count of the vacancy units, that is, the living units in the city and county of Denver was too high, and that there was a causal connection between the too high vacancy rate and the too low population count.
In other words, they didn't count people who lived in these what they felt were vacant units.
The district court, after having heard this testimony, and having heard all of the rest of it at the application for a preliminary injunction, issued its order which was very restrictive, and obviously it issued its order under Rule 26.
It indicated that we could only have lists of units that the... of addresses of units, living units which the Bureau deemed to be vacant on census day, and no other, that these lists or whatever it was that this information was kept on could be... should be redacted to eliminate all reference to the source or the respondent who provided whatever information led to the conclusion or the deduction that the unit was vacant--
Unidentified Justice: Is that order in the joint appendix, Mr. Cerrone?
Mr. Cerrone: --Yes, Your Honor, it is... the order is also in our petition.
I believe it is both in the joint appendix and in our petition.
The order is very clear also that there shall be, as this Court has indicated a problem this morning, or this afternoon, there shall be no what is referred to as secondary disclosure, that once this information is in the hands of officials or employees of the city and county of Denver who, incidentally, must be sworn to the same oath as are the employees of the Bureau who also are subject to the contempt powers of the court because the court made this order specifically applicable to them and ordered that it be served upon each and every one of them.
Unidentified Justice: You made a discovery request.
Mr. Cerrone: Yes, Your Honor.
Unidentified Justice: And so your position is different from your colleague from New Jersey?
Mr. Cerrone: Yes, Your Honor, insofar as the--
Unidentified Justice: You don't claim that the information is available to the public.
Mr. Cerrone: --Your Honor, we claim that the information is available under--
Unidentified Justice: Is available to a litigant and discoverer.
Mr. Cerrone: --Yes, Your Honor, we do.
Unidentified Justice: Well, what do you do with the discovery after you have got it on paper?
Where does it go?
Mr. Cerrone: Your Honor, once we are provided with the information regarding what they deduced to be vacant units, what we intended to do and what we told the court we were going to do, and what we asked the court to order them to do in cooperation with us, is to compare... to go out and ascertain whether or not those units were actually vacant.
Our information and our evidence at trial was that there weren't as many vacant units as they deduced to be--
Unidentified Justice: How long after April 1st, 1980, on an average, would that litigation process take place, on the present scale?
Mr. Cerrone: --Your Honor, if they would have complied with the order, which was made on September 17th, it would have been about four or five months.
There is no question about the fact that it is going--
Unidentified Justice: Well, they didn't comply with the order.
I am talking about the situation that realistically exists now.
Mr. Cerrone: --There is no question, Chief Justice, that it is going to be an awful long time, probably some time in 1982, depending upon how long all of these proceedings take.
But, Your Honor, the testimony also at the trial was to the effect that these kinds of facts can be determined subsequent to the day in which you are trying to determine the existence of the fact.
In fact, Your Honor, our witnesses, which were generally the appraisers and assessors of the city who conducted our own small survey, testified to the fact that that is what most governments do in any event.
We determine facts which pre-existed the time in which we determine them.
There is no question it is going to be difficult, but, Your Honor, we have already shown in a preliminary fashion that there is a problem in the city and county of Denver, and that that problem has got to be resolved, and the reason it has got to be resolved is because we are dealing with such a fundamental constitutional right, namely, the right to vote.
Unidentified Justice: Well, just as a guess, if you know, about how many vacant units or alleged vacant units would you think would exist in Denver as of April 1, 1980?
Mr. Cerrone: Your Honor, the figures that they have were 16,000.
There are 223,000--
Unidentified Justice: Sixteen thousand.
Now, how long is it going to take you to develop the historical facts with respect to each one of these with witnesses and cross examination and so forth?
Mr. Cerrone: --The testimony--
Unidentified Justice: Would you say maybe a day for each residence?
Mr. Cerrone: --No, Your Honor.
The testimony in the trial court was that it would... assuming that everything got ginned up and so forth, and was prepared properly, that it would take five to seven weeks.
That is the actual going out and determining--
Unidentified Justice: Whose estimate was that?
Mr. Cerrone: --Pardon?
Unidentified Justice: Whose estimate was that?
Mr. Cerrone: That was the estimate of the city, and the estimate of the Bureau was very similar.
Unidentified Justice: Of 16,000 units?
Mr. Cerrone: Yes, Your Honor.
Most of these units, Your Honor, are normally and usually in apartment buildings, and those areas where there is an aggregation, in the core city.
We are not talking about the suburbs, or where you can go down just a nice row of houses and start counting little children and so forth.
Unidentified Justice: But isn't it quite possible that in the course of that litigation New Mexico, or Nebraska, or Utah might seek to intervene, saying that if Colorado is going to hold onto a seat or gain two seats, we run the risk of losing one seat or only gaining one seat, and that that sort of legal issue is going to be floating up and down in the case, too?
Mr. Cerrone: Your Honor, first of all, with respect to the Colorado case, there is no way that we can gain the number of persons required to change the apportionment of the 435 seats in Congress.
But to answer your question fully, it may very well be that as a result of our success, other localities may feel that they should challenge the census in a like fashion that we have, and it is possible that the numbers may be such that it will result in such a consequence.
My answer, Your Honor, is very simple, that if in the event that there was a miscount in New Mexico, or if there was an undercount in New York, or wherever it happens to be, then that has got to be corrected.
The question that was posed by one of the Justices earlier regarding... regarded the expediency, and the Chief Justice also mentioned the time which it would take us to do this, but also the uses to which the census data are put, and we all know that in 1982 we are going to have a national election for the House of Representatives, and in fact in Colorado we have a governor's race and so forth, that obviously these kinds of data are going to be used for those purposes.
Unidentified Justice: How?
You say you couldn't come up with enough extra numbers to get Colorado another seat.
Mr. Cerrone: Yes, Your Honor.
Unidentified Justice: So is it really just a question then of where you draw the lines?
Mr. Cerrone: That is one of the problems.
Yes, Your Honor.
Because, for instance, if--
Unidentified Justice: Well, I didn't know that census data necessarily was binding on courts in apportionment suits.
Mr. Cerrone: --Your Honor, every suit that I am familiar with--
Unidentified Justice: Is it?
Mr. Cerrone: --There is no requirement under the Constitution--
Unidentified Justice: Not in our cases.
Mr. Cerrone: --There is no--
Unidentified Justice: Our cases don't say that apportionment suits are necessarily governed by census figures.
Mr. Cerrone: --There is no requirement in the Constitution or the statutes or any case of this Court with respect to whether or not states must use federal census data for reapportionment, but the fact of the matter is that every one of them do, and the reason that they do is because it is the only game in town.
Unidentified Justice: Yes, but if somebody sues, and says Denver... if somebody in Denver sues and says we are underrepresented here as compared with the other districts in our state, they aren't necessarily stuck with the census figures.
Mr. Cerrone: Your Honor--
Unidentified Justice: It would be awfully convenient to have them.
Mr. Cerrone: --This Court in Burns versus Richardson has held that in those events where there is a controversy in the apportionment, and in the event that there would be a controversy as to the numbers that are in every case submitted by the federal census, other parties challenging those numbers can come up with their own numbers.
Unidentified Justice: Right.
Mr. Cerrone: But, Your Honor, we don't have those other numbers.
We were told, and the record will show, prior to the census not to conduct our own--
Unidentified Justice: Well, you can do your own census.
You can do your own census.
Mr. Cerrone: --We can do our own census in 1990, Your Honor, but we can't do our own census in 1980.
Unidentified Justice: You can do your own census for purposes of a reapportionment suit.
Mr. Cerrone: We can do our own census, Your Honor, but not as of April 1, 1980, Number One, and Number Two, Your Honor, we do not have the capabilities that the federal Census Bureau has.
I want to make it clear that we do not disagree with everything they said in their census for the city and county of Denver.
We do not disagree as to the number of housing units.
We do not disagree as to where the municipal boundary is.
There are a number of things that they did right.
They didn't count or they didn't deduce the correct number of vacant units.
They didn't count everybody.
Unidentified Justice: You can make your own count on vacancies.
Mr. Cerrone: Yes--
Unidentified Justice: You can make your own count on vacancies and say, we came up with 10,000 and the Census Bureau came up with 16,000, and they are just wrong.
Mr. Cerrone: --Your Honor, I... you are absolutely correct, and this was brought out in the briefs for the government.
Unidentified Justice: Incidentally, in Burns and Richardson, does my memory serve me correctly?
Didn't we approve the use of registered voters as the basis there for Hawaiian apportionment?
Mr. Cerrone: Your Honor, I can't recall exactly right at the moment.
Unidentified Justice: Well, I think I ought to remember.
Mr. Cerrone: Your Honor, to continue, the issue... the question was raised as to whether or not we don't conduct our own census.
The fact of the matter is, we don't have the wherewithal to do it.
We didn't gin up to do it.
It would cost us probably more to get to the point where the Census Bureau is now... I really don't know how much of a cost.
We have no evidence as to that.
But the very fact that they--
Unidentified Justice: Well, you have never ginned up to do it, I take it.
Mr. Cerrone: --No, we haven't.
Unidentified Justice: And in 1970 there was no lawsuit.
Mr. Cerrone: In 1970, Your Honor, we weren't aware... or our awareness of the fallibility and peacability of the Census Bureau wasn't as high as it is today, after having looked into it, and after having suspected for one reason or another in 1980 that they didn't do their job properly, we did become aware.
Not only did we become aware, but 50, 60 other jurisdictions have become aware.
There are, as I understand it, at least 50 cases now in a consolidated case, consolidated by the U. S. Panel of Multi-District Litigation in the district in Baltimore, in Maryland.
Justice Stevens asked earlier to address the plain language of the statute.
I will address the plain language of the statute, Justice Stevens, by saying that there is nothing in that statute that is applicable to a court except how Congress amended the Act with respect to respondent retaining copies, and that is the only place where there is any mention as to restrictions on judicial disclosure.
Unidentified Justice: You are not making any claim under FOIA then.
Mr. Cerrone: No, we are not.
Unidentified Justice: In other words, you contend there is just no privilege whatsoever.
Mr. Cerrone: Well, Your Honor, that is one of the legs upon which our--
Unidentified Justice: If that is your point about no mention of courts.
Mr. Cerrone: --That is one of the legs of our argument, Your Honor, but we would go further, and I think we brought this out in our brief, that... and as the district court held, that it is obvious that there was some sort of intent and purpose of Congress in enacting this entire scheme in the statute, and that in view of that, that... and the district court held that the purposes and intent of the statute can be maintained by having a discovery order that recognizes the purposes and intent of the statute, and that is what the district court did.
It has been... I could characterize it as a qualified privilege.
I can characterize it as coming under the government report doctrine, all of which has gone into the brief.
What I want to say today, however, is that the district court recognized, and I think that it was correct in recognizing that the intent and purpose of the statute has to be maintained, if for no other reason, for the public perception.
Public perception is--
Unidentified Justice: Well, you are saying, well, sure, this information is covered by Section 9, confidentiality, but the Congress didn't want to keep it from being discovered in litigation as long as the court entered a proper order that would protect the secrecy of it.
So long as... so long as two things, Justice White.
Not only that the court order a proper protection order--
--So you disagree with your colleague from New Jersey, or do you, that Section 9 reaches... protects this information, or not?
Mr. Cerrone: --Fortunately, Your Honor, for my case I don't think it matters.
Unidentified Justice: You can say, assume that it does.
The court amply protected it.
Mr. Cerrone: Yes.
Unidentified Justice: How long do you think it could remain protected, once it is part of a deposition or other pretrial discovery?
Mr. Cerrone: Your Honor, it will not be a part of a deposition.
What was ordered by our district court was that these lists be provided to our people, who have already been sworn to secrecy, and that they use these lists to go out and check the vacancies.
Unidentified Justice: And this would be an in camera analysis by the judge and the... presumably the lawyers in opposition?
Mr. Cerrone: Your Honor, the district court also suggested... he recognized that he couldn't order... I think he could have ordered, but he did not order, but he suggested that the Bureau go along with us, have somebody come along with our people when they go out there and check as to whether or not it is vacant, and that would increase the speed at which this can be done.
Unidentified Justice: How long do you think it would be before the Denver Post and the other newspaper out there would be in court either as an intervenor or plaintiff to stop this pernicious secrecy?
Mr. Cerrone: Your Honor, I don't think that--
Unidentified Justice: Do you think that might have a tendency to slow up the whole litigation process?
Mr. Cerrone: --No, Your Honor.
As I was starting to say with Justice White, there are two conditions under which this information was made available to us, not only the protective orders, but the fact that we had shown in an application on preliminary injunction in which one of the issues is the likelihood of success, we showed that we had something there.
We showed that it wasn't a frivolous action, that we were... that the purposes of our asking for this information were the same purposes for which it is used by the Census Bureau, that is, ensuring an accurate count of the people of the city and county of Denver.
Unidentified Justice: You could show that the taking of a census was not a traditional First Amendment place where people gather to discuss public issues, too, I suppose.
Mr. Cerrone: Yes, Your Honor, I suppose we can.
Unidentified Justice: It is sort of ironic, I suppose.
Under your opponent's reading of the statute, they couldn't rebut your case by putting in their own list of vacant places, either, could they?
I suppose they couldn't use the information in court in order to defend the accuracy of their own results.
Mr. Cerrone: Your Honor, it goes right to the issue of the case in total.
The issue of our case is whether or not their list of vacancy units is correct.
The court has given them the opportunity to come along with us to verify it.
If their list is correct, it is correct.
If it isn't, then we are going to--
Unidentified Justice: Well, going along with you doesn't necessarily answer the question whether it was vacant on April 1st of 1980, of course.
Mr. Cerrone: --Your Honor, as I have indicated earlier, it is going to be difficult, and especially in view of this protracted litigation, but it can be done and it must be done.
It must be done because, as the Court knows, this case and especially in our locality, in our region, has gotten an awful lot of publicity.
The public perception has been mentioned before, and I think that the public will be able to distinguish when this Court has approved a discovery order with all the protections that are involved.
I don't think that the press is going to mislead them, and I think that they are intelligent enough to make the distinction.
But they also know that the city and county of Denver believes that its people were not correctly counted.
Unidentified Justice: Counsel, the trouble with me is, you want to keep the names confidential, you do and the government does.
So you go out and you find that this house which the government said was vacant on April 1 wasn't really vacant, it was occupied by John Jones.
Now, there is his name right out in the public.
Mr. Cerrone: Your Honor, and that is exactly, I believe, why the district court required that our people be deputized in the words of Justice Rehnquist, that is, sworn to the same type of secrecy that the regular Bureau people are, because that is exactly what this fellow is going to do.
That is, the employee of the city and county of Denver.
He is going to find out that Johnny Jones lived there, and he is going to take Johnny Jones' name and give it to them.
And he is going to hopefully forget it.
But in any event, as many protections in that process that are possible have been made by the district court.
Your Honor, the last point I would like to make to the Court, or observation I would make to the Court is, with respect to the St. Regis case, which has been mentioned earlier, the St. Regis case developed on the facts, as we all know, that suddenly the FTC wanted to have respondent retain copies of census reports.
This had never happened before.
There was never, at least insofar as we can tell, an occasion where another branch of government wanted to have these kinds of things which are retained by the respondents.
When this case came to this Court almost 18, 20 years ago, this Court held that Congress didn't provide for that, therefore they have to be resolved.
That same situation exists in this case.
No one really dreamt, as it was brought up by some of the questions that I have answered, in '70 and in '60 that we would, that is, the localities would be so aware that there is a problem with the Census Bureau.
No one anticipated that in learning that there was a problem, that we would start asking for information such as this, least of all Congress.
This is the identical situation.
This statute which restricts the truth, this privilege must be strictly construed, just as it was in St. Regis, and in the event that Congress doesn't feel that it is correct, in the event that Congress feels that this is a hole in the dike, that a finger must be pushed, then it is up to them as they get into St. Regis to fill it.
Thank you, Your Honor.
Chief Justice Burger: Do you have anything further, Mr. Schulder?
ORAL ARGUMENT OF ELLIOTT SCHULDER, ESQ., ON BEHALF OF THE PETITIONERS IN NO. 80-1436 AND THE RESPONDENTS IN NO. 80-1781 -- REBUTTAL
Mr. Schulder: Mr. Chief Justice, I would like to make several brief points.
Counsel for Essex County has attempted to argue that if our interpretation of the Census Act is correct, then the Census Bureau has no authority to disclose even the statistical information that it normally does after conducting the decennial census.
Well, the point is that Section 8(b) of the Act specifically provides authority for disclosure of tabulations and statistical materials, so long as those disclosures do not refer to information reported by or on behalf of individual respondents.
Now, the test that we have proposed for interpreting the confidentiality mandate of the Census Act can be found at... summarized at Page 17 of our brief in McNichols.
And basically what that test is, under the Act, only aggregate statistical information may be disclosed, and even then the information may not be disclosed if those statistical figures may disclose information reported by or on behalf of an individual respondent.
This interpretation is supported by the opinion of the Attorney General that we have cited in a footnote on Page 30 of our brief in Shapiro.
In that opinion, the Attorney General addressed an inquiry concerning the disclosure of names and addresses of certain employees in an upstate New York city, and also names and addresses of people who the Census Bureau had found were illiterate.
The latter group of names and addresses were sought by educational and other public service institutions that were attempting to conduct a literacy campaign.
The Attorney General's opinion indicated that the Census Bureau felt its obligation to preserve the secrecy of this sort of information to be so strict that it would not disclose even statistical information in certain communities, if that information would lead an individual to identify the particular establishments or individuals that the information related to.
Next, I would like to point out and underscore what I attempted to say earlier, that even a bare list of addresses such as is being sought by Essex County could be harmful to individual respondents, because the address lists that are maintained by the Bureau refer not to commercial properties but to residences, so that if a commercial property contained a residence, and the Bureau discovered this in the course of the census, that address would be listed on the Census Bureau's address lists.
Now, the address on the county's... the county may not have a residential listing for that particular address.
Therefore, the disclosure of this information would identify particular units that are being used for residential purposes that the county or local government may not know about, and such use may be in violation of local housing codes or zoning ordinances.
Unidentified Justice: In the McNichols case, suppose they filed an affidavit or a series of affidavits which showed that 100 percent of the houses you declared vacant were actually occupied on April 1.
How would you go about disputing that?
Mr. Schulder: If that information were brought to the attention of the Census Bureau in the course of the conduct of the local review program that I described earlier, and if the information were sufficiently broken down into enumeration district totals, so that the Census Bureau could check the city's figures against its own figures, then presumably the Census Bureau would be able to correct its figures in line with what the city had found.
Unidentified Justice: Suppose they did not.
Mr. Schulder: Suppose that the Bureau did not correct its own figures?
Unidentified Justice: Yes, and disputed them.
And disputed the city's figures.
How would that be resolved?
In a court?
Mr. Schulder: Well, we don't necessarily concede that there is any room for judicial review of the census process.
Unidentified Justice: I thought that was where you were going to end up.
Mr. Schulder: Well, the narrow issue in these cases, of course, is one of--
Unidentified Justice: I mean, that is your position, that you can't just... you can't get in court on it.
Mr. Schulder: --Well, we agree with Judge Merritt's decision in the Sixth Circuit case, Young versus Klutznick.
Unidentified Justice: It is just tough tacos.
Mr. Schulder: Excuse me?
Unidentified Justice: Tough tacos.
Ask Justice Rehnquist.
He will tell you what it means.
Mr. Schulder: Perhaps, yes.
Unidentified Justice: Well, you have to take that position, because under your reading of the statute, which may be right, you couldn't put in countervailing evidence on specific locations, I don't think.
Mr. Schulder: I believe that that is probably correct.
Unidentified Justice: So you almost have to take the position that this sort of issue doesn't belong in Court.
Mr. Schulder: That would be a use that would be barred by the statute under our reading.
That is correct, Your Honor.
Unidentified Justice: Doesn't it go even beyond the statute?
Doesn't it come down to the question of, under the Constitution, what entity is charged with conducting the census, the executive branch, the legislative branch, or the judicial branch?
Mr. Schulder: Well, I believe that is correct.
The Constitution specifically provides that the decennial census shall be conducted in a manner that Congress shall direct and Congress has provided in the Census Act for the conduct of the census by the Secretary of Commerce and his delegates, in this case the Census Bureau.
Unidentified Justice: How do the plaintiffs get into court here?
Mr. Schulder: Well, the plaintiffs in Essex County filed a Freedom of Information Act lawsuit.
Unidentified Justice: How about Denver?
Mr. Schulder: In Denver, they brought a preliminary injunction action--
Unidentified Justice: Under what?
Mr. Schulder: --I don't have the statute in mind--
Unidentified Justice: Well, does the Census Act itself invite suits by either public agencies or private parties?
Mr. Schulder: --No, no, absolutely not, Your Honor.
Unidentified Justice: Couldn't they proceed under any, as you would under any denial of a person to supply information under discovery, under the rules?
But you have got to be in court first.
What was the cause of action?
Mr. Schulder: Well, it was a lawsuit for declaratory and injunctive relief.
Unidentified Justice: For what?
Is there some implied cause of action under the census statutes, or what?
On Page 8 of the appendix, you've got about... you've got from A to I reasons, none of which are too--
--Well, I just thought... apparently the government doesn't raise any... no one raises any objection to the parties being informed.
Mr. Schulder: That's correct.
Unidentified Justice: Rights guaranteed by Article 1, Section 2, Clause 3 of the Fifth Amendment, on Page 8.
Your opponent in the Tenth Circuit case didn't challenge your right to challenge a discovery order in the court of appeals before final judgment.
Mr. Schulder: That's correct.
The case went up on interlocutory appeal that was--
Unidentified Justice: Certified.
Mr. Schulder: --Certified.
Unidentified Justice: Was there a preliminary injunction?
Yes, there was.
Mr. Schulder: A preliminary injunction was not ever issued.
The case is still pending technically in the district court at the preliminary injunction stage.
Unidentified Justice: Well, apparently they have gone to it in part at least on a claim for judicial review of administrative action.
That is the allegation in the complaint.
Mr. Schulder, I guess your case is a little more difficult, isn't it, in the McNichols situation, where we are dealing with possibly, anyway, only a qualified privilege as far as a judicial discovery order is concerned.
Mr. Schulder: Well, we don't believe so, Justice O'Connor.
Our position is that the Census Act establishes an absolute privilege, and in fact the advisory committee notes to the Federal Rules of Evidence seem to indicate that there was an absolute privilege established by the Census Act.
Unidentified Justice: Even though Congress didn't expressly say so--
Mr. Schulder: That's correct.
Unidentified Justice: --although it does in many instances.
Mr. Schulder: That's correct.
Well, counsel for Denver points out that the only specific language in the Census Act that actually immunizes Census Bureau or census information from discovery and lawsuits is the legislation that was enacted after St. Regis that discusses retained copies by census respondents, but if his theory is correct, that would mean that copies of individual reports could be discoverable if they were in the hands of the Census Bureau, and that simply cannot be the case, and the Court in St. Regis made it quite clear that census information in the hands of the Census Bureau simply was not discoverable in any judicial or administrative proceeding.
Thank you very much.
Chief Justice Burger: Thank you, gentlemen.
The case is submitted.