John Doe v. John Doe/Dissent Scalia

by Antonin Scalia

Justice SCALIA, with whom Justice MARSHALL joins, dissenting.

I fear today's decision confuses more law than it clarifies. From the prior opinions of this Court, I had thought that at least this much about the Freedom of Information Act was clear: its exemptions were to be "narrowly construed." Department of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988); FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 2063-64, 72 L.Ed.2d 376 (1982); Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976); cf. Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 1481, 103 L.Ed.2d 774 (1989) (Act mandates "full agency disclosure unless information is exempted under clearly delineated statutory language" (citations and inner quotations omitted)); Federal Open Market Committee v. Merrill, 443 U.S. 340, 351-352, 99 S.Ct. 2800, 2807-2808, 61 L.Ed.2d 587 (1979). We use the same language again today, ante, at 152, but demonstrate by our holding that it is a formula to be recited rather than a principle to be followed.

Narrow construction of an exemption means, if anything, construing ambiguous language of the exemption in such fashion that the exemption does not apply. The word "compiled" is ambiguous-not, as the Court suggests (and readily dismisses), because one does not know whether it means "originally compiled" or "ever compiled," see ante, at 154-155. Rather, it is ambiguous because "compiled" does not always refer simply to "the process of gathering," or "the assembling," ante, at 154, but often has the connotation of a more creative activity. When we say that a statesman has "compiled an enviable record of achievement," or that a baseball pitcher has "compiled a 1.87 earned run average," we do not mean that those individuals have pulled together papers that show those results, but rather that they have generated or produced those results. Thus, Roget's Thesaurus of Synonyms and Antonyms includes "compile" in the following listing of synonyms: "compose, constitute, form, make; make up, fill up, build up; weave, construct, fabricate; compile; write, draw; set up (printing ); enter into the composition of etc. (be a component )." Roget's Thesaurus 13 (S. Roget rev. 1972).

If used in this more generative sense, the phrase "records or information compiled for law enforcement purposes" would mean material that the Government has acquired or produced for those purposes-and not material acquired or produced for other reasons, which it later shuffles into a law enforcement file. The former meaning is not only entirely possible; several considerations suggest that it is the preferable one. First of all, the word "record" (unlike the word "file," which used to be the subject of this provision, see Freedom of Information Act Amendments of 1974, Pub.L. 93-502, § 2(b), 88 Stat. 1563-1564) can refer to a single document containing a single item of information. There is no apparent reason to deprive such an item of Exemption 7 protection simply because at the time of the request it happens to be the only item in the file. It is unnatural, however, to refer to a single item as having been "compiled" in the Court's sense of "assembled" or "gathered" though quite natural to refer to it as having been "compiled" in the generative or acquisitive sense I have described.

Secondly, the regime that the Court's interpretation establishes lends itself to abuse so readily that it is unlikely to have been intended. The only other documents I am aware of that can go from being available under FOIA to being unavailable, simply on the basis of an agency's own action, are records containing national defense or foreign policy information. Exemption 1 is inapplicable to records of that description that have not been classified, but it can be rendered applicable, even after the FOIA request has been filed, by the mere act of classification. See, e.g., Goldberg v. United States Department of State, 260 U.S.App.D.C. 205, 211, 818 F.2d 71, 77 (1987), cert. denied, 485 U.S. 904, 108 S.Ct. 1075, 99 L.Ed.2d 234 (1988). In that context, however, Congress has greatly reduced the possibility of abuse by providing that the classification must be proper under criteria established by Executive order. There is no such check upon sweeping requested material into a "law enforcement" file-which term may include, I might note, not just criminal enforcement but civil and regulatory enforcement as well. See, e.g., Pope v. United States, 599 F.2d 1383, 1386 (CA5 1979). I suppose a court could disregard such a "compilation" that has been made in bad faith, but it is hard to imagine what bad faith could consist of in this context, given the loose standard of need that will justify opening an investigation, and the loose standard of relevance that will justify including material in the investigatory file. Compare Pratt v. Webster, 218 U.S.App.D.C. 17, 29-30, 673 F.2d 408, 420-421 (1982) (FBI acts for " 'law enforcement purpose[s]' " when its investigation concerns "a possible security risk or violation of federal law" and has "at least 'a colorable claim' of its rationality"), with Williams v. FBI, 730 F.2d 882, 883 (CA2 1984) (FBI's investigatory records are exempt from disclosure "whether or not the reviewing judicial tribunal believes there was a sound law enforcement basis for the particular investigation"); cf. United States v. Bisceglia, 420 U.S. 141, 148-151, 95 S.Ct. 915, 919-921, 43 L.Ed.2d 88 (1975) (IRS investigative authority includes power to subpoena bank records even in the absence of suspicion that a particular taxpayer has broken the law); Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919) (grand jury subpoena cannot be resisted by raising "questions of propriety or forecasts of the probable result of the investigation, or . . . doubts whether any particular individual will be found properly subject to an accusation of crime"). It is particularly implausible that Congress was creating this potential for abuse in its revision of Exemption 7 at the same time that it was adding the "properly classified" requirement to Exemption 1 in order to eliminate the potential for similar abuse created by our decision in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). The Court's only response is that "[e]vasional commingling . . . would be prevented" by the requirement that a document cannot be withheld under Exemption 7 unless, if disclosed, it "would effectuate one or more of the six specified harms." Ante, at 156-157. But that begs the question. Congress did not extend protection to all documents that produced one of the six specified harms, but only to such documents "compiled for law enforcement purposes." The latter requirement is readily evaded (or illusory) if it requires nothing more than gathering up documents the Government does not wish to disclose, with a plausible law enforcement purpose in mind. That is a hole one can drive a truck through.

But even if the meaning of "compiled" I suggest is not necessarily the preferable one, it is unquestionably a reasonable one; and that creates an ambiguity; and our doctrine of "narrowly construing" FOIA exemptions requires that ambiguity to be resolved in favor of disclosure. The Court asserts that we have "consistently . . . taken a practical approach" to the interpretation of FOIA, by which it means achieving "a workable balance between the interests of the public . . . and the needs of the Government." Ante, at 157. It seems to me, however, that what constitutes a workable balance is Congress' decision and not ours; and that the unambiguous provisions of FOIA are so remote from establishing what most people would consider a reasonable "workable balance" that there is no cause to believe such a standard permeates the Act. Consider, for example, FOIA's disequilibrous disposition with regard to information that "could reasonably be expected to endanger the life or physical safety of any individual"-namely, that such information is not withholdable in all cases, but only if it has been "compiled for law enforcement purposes." See 5 U.S.C. § 552(b)(7)(F). "Workable balance" is not a workable criterion in the interpretation of this law. In my view, a "practical approach" to FOIA consists of following the clear provisions of its text, and adhering to the rules we have enunciated regarding interpretation of the unclear ones-thereby reducing the volume of litigation, and making it inescapably clear to Congress what changes need to be made. I find today's decision most impractical, because it leaves the lower courts to guess whether they must follow what we say (exemptions are to be "narrowly construed") or what we do (exemptions are to be construed to produce a "workable balance").

I respectfully dissent.

Notes