DONALD RUSSELL, Circuit Judge:
The Administrator of EPA
The Freedom of Information Act was intended to express in statutory form the firm obligation of governmental agencies to make disclosure to "any person" of identifiable information and facts in their possession, limited only by certain specific exemptions.
The specific exemption on which the Administrator relies authorizes non-disclosure of "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." This exemption has been authoritatively construed as differentiating in treatment between "materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other",
Ordinarily, when the issue of severability, as stated in Mink, arises, the Court will review in camera the documents in controversy.
In this case, it is freely conceded by the Administrator that the documents in question contain in part scientific, medical, economic and technological data of a purely factual nature. The District Court found from an in camera review of the documents that such factual data were "severable without compromising the private remainder of the documents." That this conclusion is correct was substantiated by the subsequent concession made by the Administrator himself. Thus, the District Court permitted the Administrator to, and the Administrator did, "select from the documents that the Court has [had] examined en camera [sic], those matters which they [he] would agree are purely factual or scientific, as distinguished from advice, recommendations, opinions and other material reflecting deliberative and policy making processes." After receiving this compilation by the Administrator, the District Court commented that there were few or no significant differences between the material in the documents found by him to be purely factual and not intertwined with the decisional processes of the Administrator, and those agreed by the Administrator to be so purely factual. The Administrator does not dispute this statement of the District Court. We assume, therefore, there is no substantial difference between the material found by the District Court to have been "purely factual" and severable from protected material and that so found by the Administrator's own representative. Under those circumstances, it is thus incontestable that in a substantial sense the material, the disclosure of which he resists, is not
As a last-line defense to disclosure, however, the Administrator invokes "executive privilege". Such privilege was well recognized long before the enactment of the Freedom of Information Act. The extent and scope of the privilege, which is regarded as in part constitutional in origin and in part common law, have been explicated in the numerous decisions in which the issue has arisen.
In determining when the claim may be properly invoked, the Courts have for long classified the information sought under two broad headings. This was the procedure followed by Justice White in Mink. The first classification relates to what has been often described as "state secrets" or matters relating to national security, either military or diplomatic.
Congress was obviously aware of these two broad classifications of material, over which the claim of "executive privilege" might be asserted and, in the Freedom of Information Act, attempted to give to each classification its precise, established judicial right of immunity from discovery.
The claim of "executive privilege" in this case is no more than a restatement of the Administrator's claim for exemption under Section (b)(5) of the Act and no broader than the rights given the Administrator under that Section. As the Court recognized in Philadelphia Newspapers, Inc. v. Department of H. & U. D. (D.C.Pa.1972) 343 F.Supp. 1176, 1178, the right of immunity, as asserted by the Administrator in this case, is the same, whether it be claimed as an exemption under Section (b)(5) or under the heading of "executive privilege". Thus, the claim of "executive privilege" gives no added stature to the Administrator's claim of exemption under Exemption 5 and is equally unavailing as a basis for reversal of the District Court's conclusion.
Wu v. National Endowment for Humanities (5th Cir. 1972) 460 F.2d 1030, cited by the Administrator, illustrates the distinction. In that case, the contested documents consisted of "opinions, not facts, and are thus protected by exemption (5)" (at 1033). The decision, however, very clearly recognized that "purely factual material, * * * is not protected from disclosure * * *." (at 1032)
See, also, Bristol-Myers Company v. F.T.C., supra, at 939 (424 F.2d):
In Wellford v. Hardin, supra, at 770 (315 F.Supp. 768), the Court said:
S.Rep. No. 1219, 88th Cong., 2d Sess., 13-14:
See, also, M. A. Schapiro & Co. v. Securities and Exchange Com'n. (D.C. D.C.1972) 339 F.Supp. 467, 469, where the Court remarked that the subsequent release of parts of the contested material "is an indication on their part as to the merits of their initial assertions."
Mink, supra, 410 U.S. at 93, 93 S.Ct. at 839.
Soucie v. David, supra, at 1079, n. 48 (448 F.2d) puts it:
See, also, Committee for Nuclear Responsibility, Inc. v. Seaborg (1971) 149 U.S.App.D.C. 393, 463 F.2d 796, 798.
See, Soucie v. David, supra, at 1077 (448 F.2d).
It is of interest, too, that the proposed Rules of Evidence for the United States Courts and Magistrates make this same distinction between "state secrets" and "official information" and establish the same rules governing the production of such materials as are set forth in the Freedom of Information Act (Rule 509). This similarity was noticed by the Court in Mink. 410 U.S. at 89, n. 16, 93 S.Ct. at 837.