BUTZNER, Circuit Judge:
The Secretary of Agriculture appeals from an order of the district court enjoining the Consumer and Marketing Service of the Department of Agriculture from withholding from the public (1) letters of warning sent to meat and poultry processors; and (2) information with respect to the administrative detention of meat and poultry products.
The Poultry Products Inspection Act provides that the Secretary of Agriculture need not prosecute violators "whenever he believes that the public interest will be adequately served and compliance with the Act obtained by a suitable written notice or warning." 21 U.S.C. § 462 (1964). The Federal Meat Inspection Act contains a similar provision, except that the Secretary's option to issue a warning letter is limited to "minor violations." 21 U.S.C. § 676(b) (Supp. III, 1967). The Federal Meat Inspection Act and the Poultry Products
Harrison Wellford, Executive Director of the Center for Study of Responsive Law, requested disclosure under the Freedom of Information Act, 5 U.S.C. § 552, of copies of all letters of warning issued since January 1, 1965, to any non-federally-inspected meat or poultry processor suspected of being engaged in interstate commerce. He also requested the name of each processor whose product had been detained since January 1, 1965, and information about the detention including the ultimate disposition of the products. The Administrator of the Consumer and Marketing Service denied the requests on the grounds that the records were investigatory files exempt from the mandatory disclosure provisions of the Act.
The Freedom of Information Act, 5 U.S.C. § 552, provides in pertinent part:
We agree with the district court that the legislative history of this exemption reveals that its purpose was to prevent premature discovery by a defendant in an enforcement proceeding. The reports of the House Government Operations Committee and the Senate Judiciary Committee define the purpose of the exemption as the protection of the government's case in court.
The Department argues that the investigatory files exemption has other purposes which prohibit access to these records. Investigative agencies must be protected, it says, from disclosure of the identity of informants and investigative techniques. The plaintiffs, however, requested no more than the results of the enforcement actions and, at any rate, no more than was already in the hands of the companies who were warned or whose products were detained. Because the contents of these records are known by these companies, publication would not reveal secret investigative techniques.
The Department also contends that disclosure of enforcement records may discourage voluntary compliance with the Meat and Poultry Inspection Acts. Whatever the merits of the Department's argument,
The Department takes the position that the seventh exemption was intended to protect not only the investigator, but also the investigated. Public disclosure of information in investigatory files, it argues, may constitute an unwarranted invasion of the privacy of companies that have been investigated, and defamatory information contained in these files may damage their reputations. In support, the Department cites testimony before legislative committees that administrative files often contain "half-baked complaints," mere rumor, and unsubstantiated charges of wrongdoing. Again, the plaintiffs did not request complaints, half-baked or otherwise, but only the records of official enforcement actions.
Of course, a company subject to a warning letter or detention action suffers a loss of privacy. The question, however, is whether the loss of privacy involved in disclosing the requested records is, as the Department contends, unwarranted. Congress has already answered the question by passing the Freedom of Information Act and the "overriding emphasis of its legislative history is that information maintained by the executive branch should become more available to the public." Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, p. 1 (1967). After considering voluminous testimony on both sides and balancing the public, private, and administrative interests, Congress decided that the best course was
A broad construction of the exemptions would be contrary to the express language of the Act. See Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, 938 (1970). Section 552(c) provides that the Act "does not authorize withholding of information or limit the availability of records to the public, except as specifically stated * * *." Speaking of this provision, one commentator has said:
Professor Davis' admonition is pertinent to the issues in this case. By its terms, the seventh exemption applies only to investigatory files compiled for law enforcement purposes. The emphasis of the statute is upon the investigatory character of the files, and under § 552(c) the exemption should be limited "specifically" to files of this type. It should not be enlarged, we hold, to include records of administrative action taken to enforce the law.
While this case was pending on appeal, the Supreme Court decided Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). There the Court declared unconstitutional a Wisconsin statute under which the chief of police, among others, was authorized to post a public notice in all local liquor retail outlets prohibiting the sale or gift of liquor to named individuals. The constitutional infirmity lay in the power of the police chief, without giving Mrs. Constantineau notice or an opportunity to be heard, to make the statutory determination that her excessive drinking exposed herself or her family to want or constituted a threat to the peace of the community. Such official action imposing a degrading label, the Court held, must be preceded by notice and an opportunity to defend.
The Department, observing that its letters of warning and detention orders are summary procedures, suggests an analogy between them and the posting that was condemned in Constantineau. Questions about the constitutionality of its letters of warning and detention orders can be avoided, it says, if we but construe the Freedom of Information Act to exempt the letters and reports from public disclosure.
The difference between a private individual and a regulated industry raises serious doubts about applying Constantineau to bar the public release of information concerning summary enforcement of laws governing a regulated industry. Indeed the Court prefaced its holding in Constantineau by cautioning: "Generalizations are hazardous as some state and federal administrative procedures are summary by reason of necessity or history." 400 U.S. at 436-437, 91 S.Ct. at 510. However, we need not rest our decision on the distinction between private persons and regulated industries. In the posture of this case, Constantineau is clearly inapplicable. The underlying defect in the Wisconsin statute was the lack of procedural due process in the steps that led to the "posting." Here, in contrast, neither party challenges the constitutionality of the procedures that culminate in warning letters or detention orders. Since the constitutionality of the Department's unpublicized enforcement of the Inspection Acts is accepted by both parties, the same proceedings are not rendered unconstitutional simply because a record of them is released to the public.
I think letters of warning constitute "investigatory files" exempted from disclosure under the Freedom of Information Act, 5 U.S.C. § 552(b) (7).
Such a communication is intended to assure fair play to a person who may appear to be in violation of any law. He may in good faith be entirely unaware of any wrongdoing, or circumstances may render the legality of his position simply uncertain. Presumably, he wants to obey the law. Admonishment from the Government agency may, indeed, evoke an explanation which would wholly dispel even the appearance of illegality and avoid the delay and expense of litigation.
But, divulge the warning and he is at once convicted or at least branded a lawbreaker. The public is quite willing to draw a sinister inference — for instance of questioned integrity — from the barest possibility of illegal conduct. Let the agency write a professional man, or anyone serving in a trust capacity, cautioning him that he may be in or nearing the breach of a statute, then make it available to the world, and the addressee is smeared inerasably. It matters not whether in truth there is a violation, or how inadvertent his deportment, and or how desirous he was from the very beginning to correct his deviation, if any. Protection of a citizen who upon receiving a warning letter complies with the law is a legitimate use of exemption (7) of the Act.
To say that Congress "by passing the Freedom of Information Act" has already resolved this predicament against the citizen is to beg the question, for the very question here is whether the Act does so. I am reluctant to believe Congress intended to expose him so unfairly to the stigma of accusation. On these grounds I would reverse the judgment of the District Court in regard to warning letters.
H.Rep.No.1497, 89th Cong., 2nd Sess. (1966):