MATTHES, Senior Circuit Judge.
On this appeal by the Department of the Air Force we are required to review a district court order requiring the Air Force to make public all of a safety report on an airplane crash. The district court order and memorandum opinion, published at 370 F.Supp. 738 (N.D.Iowa 1974), were premised upon the Freedom of Information Act (FOIA), 5 U.S.C. § 552.
On February 24, 1972, Second Lieutenant David L. Brockway, Jr., of the United States Air Force was killed when his aircraft crashed during a training flight near England Air Force Base, in Louisiana. This appeal concerns the efforts by David L. Brockway, Sr., the lieutenant's father and the plaintiff-appellee in this action (hereinafter plaintiff), to utilize the Freedom of Information Act to gain access to statements by certain witnesses, all members of the Air Force, about the circumstances surrounding the crash. The statements are not sought for purposes of any pending or anticipated litigation. Rather, plaintiff seeks the statements solely for his personal enlightenment as to the cause of the crash in which his son was killed.
A short explanation of the nature of the information sought by the plaintiff in this action, and the manner in which that information was obtained by the Air Force, is necessary for an understanding of this appeal.
Shortly after the crash, the Air Force instituted certain investigative procedures established by Air Force regulations. In accordance with these regulations, two separate and independent investigations of the crash were undertaken. The one, called a collateral investigation, was made "to obtain and preserve all available evidence for use in claims, litigation, disciplinary action, and adverse administrative proceedings, and for all other purposes except for safety and accident prevention purposes." The other, characterized as an aircraft accident investigation (also called a safety investigation), was instituted "for the sole purpose of accident prevention." A.F.Reg. 110-14, ¶ 1.
There is a specific rationale for this dual investigation procedure. The Air Force believes that a witness may be reluctant to testify freely before the collateral investigation board for fear that his statement will reveal some negligence or misconduct on his part, thereby exposing himself to disciplinary action or other adverse consequences. To enable the Air Force to obtain from a witness all relevant information necessary to prevent further accidents of a similar
Upon his request for the Air Force investigative files on the crash which resulted in his son's death, plaintiff was supplied part of the collateral report, although the Air Force withheld the opinions, conclusions, and recommendations of that report and medical reports on an instructor pilot also killed in the crash. After plaintiff brought this suit pursuant to the FOIA, the Air Force supplied him with the remainder of the collateral investigation report.
Upon learning of the existence of the safety investigation report, however, the plaintiff insisted that the safety report also be revealed. The Air Force granted plaintiff access to part of the safety report, but declined to disclose the remainder, which included a report by Cessna Aircraft Company in connection with the crash, the statements of various witnesses to the safety investigation board upon assurances of confidentiality, and material containing the opinions, recommendations, and conclusions of the safety board. In regard to the witness statements, the Air Force did furnish the plaintiff with the names and addresses of the witnesses whose statements were withheld and offered to allow each witness to review his own statement if he personally wished to reveal his testimony to the plaintiff. Pursuant to the FOIA, the plaintiff in this action sought to enjoin the withholding of the Cessna Aircraft report and the witness statements contained in the safety report files. Thus the district court was presented with the question whether the FOIA required the disclosure of the Cessna report and the statements of the witnesses.
The Freedom of Information Act, enacted in 1966 as an amendment to the Administrative Procedure Act of 1946, manifested Congress's belief that administrative agencies were improperly withholding from the public considerable information that should have been made available.
The Air Force asserted to the district court that under Exemption 4 the Cessna report was exempt from disclosure as confidential commercial information. The district court accepted this argument, 370 F.Supp. at 740-41, and the plaintiff has not appealed this ruling. The Air Force also contended that the witness statements were exempt under Exemption 4, arguing that the exemption included nonfinancial confidential statements such as those given to the safety investigation board. The Air Force alternatively urged that the statements were intra-agency memoranda, immune from discovery in litigation by a qualified privilege, and therefore exempt under the fifth exemption of the Act.
The district court rejected both arguments of the Air Force on the immunity of the witness statements from disclosure, and ordered production of all but three of the statements.
Turning to the contention that the statements were exempt under the fifth exemption, the district court focused upon the provision of the exemption that disclosure would not be required as to information "which would not be available by law to a party . . . in litigation with the agency." The court reasoned from the discovery provisions of Fed.R.Civ.P. 26 that the witness statements could be discovered by a party in litigation with the agency.
At issue on this appeal is whether the witness statements fall within the scope of either the fourth exemption or the fifth exemption to the disclosure requirement of the FOIA.
As noted above, the fourth exemption excludes from the mandate of disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." The district court ruled that this exemption applies only to information received by an agency from private individuals outside the government and that the witness statements in question here did not come within the scope of the exemption, since all the statements were by Air Force personnel. 370 F.Supp. at 741. There is authority supporting the court's holding, although the prior cases usually were phrased in the context of transferring general agency files from one governmental
Nevertheless, we are constrained to observe that the language of Exemption 4 does not of itself establish such a distinction between information received from intra-governmental and extra-governmental sources, and the legislative history does not address directly the matter of such a distinction. See generally K. Davis, supra, § 3A.19, at 152-53. Moreover, the rationale for the distinction has been criticized for failing to take into account that there is judicial review of the reasonableness of any promise of confidentiality made by an agency. Note, The Freedom of Information Act: A Seven-Year Assessment, 74 Columbia L.Rev. 895, 952-53 (1974).
But the ruling of the district court that the statements are not within the scope of Exemption 4 may be upheld on another ground; namely, that, aside from trade secrets, the exemption immunizes from disclosure only confidential or privileged information which is commercial or financial in nature. The Air Force conceded at oral argument that the witness statements sought by the appellee in this action are not commercial or financial in nature. Nevertheless, the Air Force submits that Exemption 4 protects not only trade secrets and commercial or financial information, but also any information in its custody which is privileged or confidential.
But such a construction tortures the plain language of the exemption. It seems clear to us that the phrase "privileged or confidential" is intended to modify, albeit somewhat inartfully, the phrase "commercial or financial information" so as to limit the class of commercial or financial information which is immune from disclosure to that which is privileged or confidential. The courts which have considered this question are in near unanimous agreement with this construction: "The plain language of this section exempts only (1) trade secrets and (2) information which is (a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential. The exemption . . . does not apply to information which does not satisfy the three requirements stated in the statute." Consumers Union of United States, Inc. v. Veterans Administration, supra, 301 F.Supp. at 802. Accord, Getman v. N.L.R.B., 146 U.S.App. D.C. 209, 450 F.2d 670, 673 (1971); Sears, Roebuck & Co. v. General Services Administration, 384 F.Supp. 996, 1005 (D.D. C.1974); Rabbitt v. Department of the Air Force, 383 F.Supp. 1065, 1069 (S.D.N. Y.1974); Tax Analysts and Advocates v. IRS, 362 F.Supp. 1298, 1307 (D.D.C.1973), modified in part on other grounds, 505 F.2d 350 (D.C.Cir.1974). Barceloneta Shoe Corp. v. Compton, 271 F.Supp. 591 (D.P.R.1967), the one reported decision suggesting to the contrary that any privileged or confidential information is protected from disclosure by Exemption 4, is not in our view based upon a careful analysis of the statute and has not been cited for that proposition by any other court.
In support of its asserted construction of Exemption 4, the Air Force relies primarily
The tendency has been to grant little weight to these passages from the reports on the theory that the passages were taken from previous congressional reports on an earlier draft of the Freedom of Information bill which did in fact exempt confidential non-commercial and non-financial matters. See Consumers Union of United States, Inc. v. Veterans Administration, supra, 301 F.Supp. at 802; K. Davis, supra, § 3A.19; Katz, The Games Bureaucrats Play: Hide and Seek Under the Freedom of Information Act, 48 Texas L.Rev. 1261, 1265-67 (1970).
In any event, we are not inclined to subordinate the unambiguous language of the statute to clearly contradictory legislative history. To hold otherwise would be to undermine the principle that enacted legislation should be generally considered the final and authoritative expression of the will of Congress on a matter. See K. Davis, supra, § 3A.31; cf. 2A C. Sands, Sutherland Statutory Construction §§ 48.02, 48.06 (4th ed. 1973). "Although the congressional reports on [the FOIA] say that information not commercial or financial in nature is exempted, this court is required to follow the words of the Congress." Consumers Union of United States, Inc. v. Veterans Administration, supra, 301 F.Supp. at 802.
Since the witness statements in question here are not trade secrets and are not commercial or financial in nature, we accordingly hold that the statements are not exempt by § 552(b)(4) from the disclosure requirement of the FOIA.
We come now to the more difficult question of whether the witness statements are within the scope of 5 U.S.C. § 552(b)(5), which exempts from disclosure under the FOIA documents that are "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." The district court held that the statements in question did not qualify for protection under Exemption 5, ruling in effect that the statements would be "available by law" to the plaintiff in litigation. The Air Force urges on this appeal that the statements would not be discoverable by a party in litigation, since the statements would be immune to discovery by a qualified executive privilege.
In Exemption 5 Congress did not seek to define precisely what kinds of agency memoranda were protected from the general disclosure mandate of the FOIA, but rather adopted as the scope of Exemption 5 the parameters of the general rules of discovery: "Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context . . . ." Renegotiation
In defining the scope of Exemption 5, most courts have held that the exemption generally operates to protect "internal communications consisting of advice, recommendations, opinions, and other material reflecting deliberative or policy-making processes, but not purely factual or investigatory reports." Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067, 1077 (1971). Accord, e.g., EPA v. Mink, 410 U.S. 73, 85-91, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Tennessean Newspapers, Inc. v. FHA, 464 F.2d 657, 660 (6th Cir.1972); Bristol-Myers Co. v. FTC, 424 F.2d 935, 939 (D.C.Cir.1970); Philadelphia Newspapers, Inc. v. Department of HUD, 343 F.Supp. 1176, 1178 (E.D.Pa. 1972); M. A. Schapiro & Co. v. SEC, 339 F.Supp. 467, 470 (D.D.C. 1972); Consumers Union of United States, Inc. v. Veterans Administration, supra, 301 F.Supp. at 804-05.
Relying upon these cases, plaintiff contends that Exemption 5 protects from disclosure only memoranda which are deliberative in nature, and that no other standard is permissible in any instance for determining if a document comes within the scope of Exemption 5. We do not agree.
In construing Exemption 5 as protecting policy-making and deliberative memoranda, courts generally have relied upon two sources for guidance. See generally Comment, Developments Under the Freedom of Information Act—1973, 1974 Duke L.J. 251, 266-69; Note, The Freedom of Information Act and the Exemption for Intra-Agency Memoranda, 86 Harv.L.Rev. 1047, 1049-50 (1973).
First they have cited certain language from the Senate Report on the Act, language which numerous courts have suggested reflects an intent of Congress to limit the fifth exemption to protection of material of a deliberative or policy-making nature.
Focusing upon the language of the exemption that disclosure under the FOIA will be denied if the material "would not be available by law to a party . . . in litigation," courts construing Exemption 5 have used as a second source of guidance those non-FOIA cases construing the general scope of a governmental or executive privilege from discovery of policy memoranda sought under Fed.R. Civ.P. 26.
In fact, the Air Force cites us to case authority recognizing that there is a qualified executive privilege in pre-trial discovery for witness statements given in a military aircraft safety investigation such as the present one, even though such statements are not policy documents. The Air Force thus argues that, in light of this governmental privilege in general discovery proceedings for witness statements, the statements in question would "not be available by law to a party . . . in litigation," and that therefore Exemption 5 bars plaintiff from obtaining disclosure of the statements under the FOIA.
The leading case on the executive privilege for the witness statements is Machin v. Zuckert, 114 U.S.App.D.C. 335, 316 F.2d 336, cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963). Machin involved almost precisely the same issue under the law of pre-trial discovery as has been raised on this appeal under the FOIA. The appellant in Machin was seeking discovery of an Air Force investigation report of an airplane crash, apparently for litigation with a party other than the government. The appellant sought discovery of, among other items, certain witness statements made to Air Force investigators by employees of aviation corporations upon assurances of confidentiality and the factual findings of Air Force mechanics who inspected the wreckage. The court of appeals ordered the factual findings of the mechanics disclosed, and the case has been frequently cited for the proposition that documents factual in nature generally are not privileged, while policy documents usually are privileged. But the court also held that the witness statements of the aviation industry employees were privileged from discovery. The Air Force had argued to the court that if the industry employees were not given assurances that their statements would remain confidential, the Air Force would not receive the full details from the employees, who might hold back certain information if they believed it could be used against their employer. Without such information, the Air Force had argued, it would have difficulty ascertaining what steps needed to be undertaken to make the aircraft and equipment safer. The court accepted this reasoning:
316 F.2d at 339.
This particular holding of the Machin court has been recognized by several treatises. See McCormick on Evidence § 108, at 230n. 6 (2d ed. 1972); 8 C. Wright & A. Miller, Federal Prac. &
Thus we are not persuaded by plaintiff's argument that these witness statements cannot be considered within the scope of Exemption 5 since they are not policy memoranda. The language of Exemption 5 makes no distinction between memoranda which are deliberative and those which are factual in nature, but rather speaks only in terms of whether the material sought under the FOIA "would not be available by law to a party" in general discovery proceedings. As the Air Force has shown, there is authority indicating that an executive privilege exists justifying "by law" the nondiscovery of these witness statements. We have already noted above that the legislative history and the line of cases such as Carl Zeiss Stiftung need not necessarily be the sole standards for determining the propriety of a claim of rightful nondisclosure under that exemption.
Moreover, we believe that, "In the case at bar this factual versus deliberative distinction is inadequate to resolve the difficult question whether [this material] should be exempt from disclosure." Montrose Chemical Corp. v. Train, 160 U.S.App.D.C. 270, 491 F.2d 63, 67 (1974). In determining whether these witness statements should be protected by Exemption 5, we believe it is more appropriate to view the claim of governmental or executive privilege from the perspective of the purposes and goals of the FOIA and this specific exemption. One commentator has characterized the
Viewed in light of these two policies, it is clear that the latter policy will be thwarted by the disclosure of these witness statements. As the same commentator observes:
Note, supra, 86 Harv.L.Rev. at 1054-55. Cf. National Parks & Conservation Ass'n v. Morton, 162 U.S.App.D.C. 223, 498 F.2d 765, 767 (1974). In addition, this case represents one of the rare instances when the nondisclosure of the witness statements will have no great bearing on the first of the two policies of the FOIA enumerated above. The future needs of individuals for information will not be satisfied by the disclosure of these statements, for without the assurances of confidentiality the information probably would not come to light at all and would be lost not only to any individual seeking the information, but also to the Air Force seeking improvement in safety procedures. Moreover, the idea that disclosure will encourage a sense of responsibility in the agency on the theory that it knows it will not be able to hide its mistakes is hardly appropriate here: the whole purpose of the privilege is to allow the Air Force to learn of possible agency or personnel errors otherwise unknown to it.
Consequently, we believe that the purposes of the FOIA and of the fifth exemption are best carried out by holding that these witness statements are protected from disclosure by Exemption 5. We believe that this holding complements the basic policy underlying cases such as Carl Zeiss Stiftung which have recognized in discovery proceedings a governmental privilege for policy memoranda of the agencies. Indeed, in speaking of the policy memoranda privilege, the Supreme Court has noted that, "Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions." NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 151, 95 S.Ct. at 1516. Our decision today is in conformity with that purpose.
Recently, the United States Court of Appeals for the District of Columbia Circuit also recognized that the strict fact-deliberation criterion may be inappropriate in some instances for determining whether a document should be exempted from disclosure by this fifth exemption. In Montrose Chemical Corp. v. Train, supra, Montrose sought under the FOIA two fact summaries prepared for the Administrator of the EPA by aides to the Administrator and based upon the 9200-page record of certain EPA proceedings. Although the reports were essentially compendia of facts, the court held that the summaries were exempt from disclosure by Exemption 5. In reaching that result, the court stated:
491 F.2d at 68 (emphasis in original). The court concluded that the exemption was intended to protect the deliberative process, and that the factual summaries sought in that case reflected that deliberative process of the EPA to such an extent that they should be exempt from disclosure.
On the narrow facts of this case we believe that the deliberative processes of the Air Force in establishing appropriate safety policies will be best protected by permitting these witness statements to be exempted from disclosure. If the statements are disclosed and the flow of information to the Air Force safety investigation boards is curtailed, there is the definite possibility that the deliberative processes of the Air Force will be hampered and the efficiency of a specific administrative program reduced.
EPA v. Mink, supra, 410 U.S. at 91, 93 S.Ct. at 838.
By our holding in this case we do not mean to imply that we are rejecting the general fact-deliberation criterion established in the decisions of other courts. Rather, we hold that on the narrow facts presented here, specifically involving statements by witnesses to Air Force safety investigators upon assurances of confidentiality, common sense as reflected in the general law of discovery, see, e. g., Machin v. Zuckert, supra, indicates disclosure of these statements would defeat rather than further the purposes of the FOIA and is not required by the language of the FOIA itself.
For reasons stated in Division II of this opinion the judgment of the district court is reversed.
S.Rep. at 9.
Rule 34(a) provides for the discovery of documents and other writings "which constitute or contain matters within the scope of Rule 26(b)."
The new Federal Rules of Evidence, effective July 1, 1975, provide no enlightenment on the extent of any governmental privilege to preclude discovery of certain documents. Fed.R. Evid. 501 simply provides that "the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."
Moreover, even assuming arguendo that the specific circumstances of the plaintiff are to be considered in determining whether these statements fall within Exemption 5, we question whether plaintiff has in fact shown a substantial need for the statements, since there is no indication on the record that plaintiff seeks the material for use in any present or anticipated litigation. Nevertheless, if the plaintiff at any time in the future should require the witness statements for use in private litigation and can make a showing sufficient to overcome any qualified governmental privilege, then plaintiff may still obtain the statements, although in Rule 26 discovery proceedings ancillary to the private litigation rather than under the FOIA.