dc/3710792.json

"{\"id\": \"3710792\", \"name\": \"ESSENTIAL INFORMATION, INC., et al., Appellants, v. UNITED STATES INFORMATION AGENCY, Appellee\", \"name_abbreviation\": \"Essential Information, Inc. v. United States Information Agency\", \"decision_date\": \"1998-02-10\", \"docket_number\": \"No. 97-5017\", \"first_page\": \"341\", \"last_page\": \"348\", \"citations\": \"328 U.S. App. D.C. 341\", \"volume\": \"328\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T21:04:34.748924+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: HENDERSON, RANDOLPH and TATEL, Circuit Judges.\", \"parties\": \"ESSENTIAL INFORMATION, INC., et al., Appellants, v. UNITED STATES INFORMATION AGENCY, Appellee.\", \"head_matter\": \"134 F.3d 1165\\nESSENTIAL INFORMATION, INC., et al., Appellants, v. UNITED STATES INFORMATION AGENCY, Appellee.\\nNo. 97-5017.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued Dec. 9, 1997.\\nDecided Feb. 10, 1998.\\nColette G. Matzzie, Washington, DC, argued the cause for the appellants. David C. Vladeck, Washington, DC, was on brief.\\nDouglas N. Letter, Attorney, United States Department of Justice, Washington, DC, argued the cause for the appellee. Frank W. Hunger, Assistant Attorney General, and Mary Lou Leary, Acting United States Attorney, Washington, DC, were on brief.\\nBefore: HENDERSON, RANDOLPH and TATEL, Circuit Judges.\", \"word_count\": \"4791\", \"char_count\": \"31310\", \"text\": \"Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.\\nConcurring opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.\\nDissenting opinion filed by Circuit Judge TATEL.\\nKAREN LeCRAFT HENDERSON, Circuit Judge:\\nThe appellants, who identify themselves as \\\"researchers, scholars, organizers and journalists,\\\" Appellant's Brief at 6, seek disclosure under the Freedom of Information Act, 5 U.S.C. \\u00a7 552 et seq., (FOIA) of internet addresses and programming materials generated by the United States Information Agency (USIA). The district court granted summary judgment in favor of USIA on the ground that USIA's records \\\"are exempted from disclosure by statute,\\\" 5 U.S.C. \\u00a7 552(b)(3)(B), namely by the Smith-Mundt Act (Act), which prohibits USIA from \\\"disseminating]\\\" \\\"information\\\" or \\\"distributing]\\\" \\\"program material\\\" within the United States, 22 U.S.C. \\u00a7 1461, 1461-la. See Essential Info., Inc. v. USIA C.A. No. 96-1194 (D.D.C. Nov. 27, 1996) (Mem. Op.). We affirm the district court's judgment on this ground.\\nThe FOIA requires generally that \\\"each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.\\\" 5 U.S.C. \\u00a7 552(a)(3). FOIA Exemption 3 shields from the general disclosure requirement \\\"matters that \\u2014 . are exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.\\\" 5 U.S.C. \\u00a7 552(b)(3)(B). A \\\"central aim\\\" of the FOIA is \\\"to substitute legislative judgment for administrative discretion.\\\" American Jewish Congress v. Kreps, 574 F.2d 624, 628 n. 30 (D.C.Cir.1978) (citing S. Rep. 89-813, at 3-6 (1965)). The aim is apparent in subsection (A) of Exemption 3 which, \\\"on its face, is too rigorous to tolerate any decision making on the administrative level.\\\" Id. at 628. When \\\"Congress has made plain its concern with a specific effect of publicity ., Exemption 3 is to honor that concern.\\\" Id. at 629. The Congress has expressed its concern plainly in the SmithMundt Act and we must therefore apply Exemption 3.\\nSection 1461 of the Act directs that \\\"information about the United States, its people, and its policies\\\" that USIA prepares or disseminates abroad \\\"shall not be disseminated within the United States, its territories, or possessions\\\" until twelve years after its preparation or dissemination when the Archivist of the United States (Archivist) is to oversee its \\\"domestic distribution.\\\" 22 U.S.C. \\u00a7 1461(a), (b). Similarly, section 1461-1a provides that \\\"no program material prepared by [USIA] shall be distributed within the United States\\\" \\\"[e]xcept as provided in section 1461,\\\" id. \\u00a7 1461-la. Each provision contains a flat ban on \\\"dissemination\\\" or \\\"distribution\\\" for a twelve-year period. See 5.Rep. No. 92-754, at 82-85 (1972) (declaring that section 1461 \\\"is a blanket prohibition barring public distribution of any and all materials produced by the United States Information Agency\\\"). The Act even prescribes who may merely examine the materials. Thus, on its face the Act appears to be \\\"the sort of nondisclosure statute contemplated by FOIA exemption 3\\\" because it is \\\"a statute specifically exempting certain matters from disclosure to the general public and leaving [USIA] with no discretion to reveal those matters publicly.\\\" Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 611 (D.C.Cir.1997).\\nThe statute's plain language is reinforced by the Congress's repeated amendment of the Act to clarify and strengthen the ban on domestic distribution of USIA materials. See Pub.L. No. 92-352, \\u00a7 204, 86 Stat. 489, 494 (1972) (inserting express prohibition in section 1461 to remedy \\\"obvious need for a specific prohibition against the domestic dissemination of any USIA materials,\\\" S.Rep. No. 92N54, at 85); Pub.L. No. 99-93, \\u00a7 208, 99 Stat. 405, 431 (1985) (enacting section 1461-1a); Pub.L. No. 101-246, \\u00a7 202, 104 Stat. 15, 49 (1990) (adding section 1461(b) which directs USIA to deliver materials to Archivist \\\"for domestic distribution\\\" after 12 years, changing \\\"[c]urrent law\\\" which \\\"prohibited] the domestic release of almost all USIA materials,\\\" S. Rep. 101-46, 31 (1989)); Pub.L. No. 103-236, \\u00a7 232, 108 Stat. 382, 424 (1994) (amending section 1461-la to make clear that ban does not prohibit responding to public inquiries). Particularly enlightening are the circumstances surrounding the 1972 amendment which first made the domestic distribution ban explicit. A member of the United States Senate had requested and obtained a USIA film which he intended to broadcast to his constituents. See S.Rep. No. 92-754, at 82-85. In direct response to the proposed broadcast, the Congress amended the Act to prohibit dissemination and distribution generally and to restrict its own members' access to USIA materials to \\\"examination only.\\\" See H.R.Rep. No. 1145, at 16 (1972) (\\\"provision was amended . to clarify . that U.S.I.A. materials are to be made available to Members of Congress for examination only and not for dissemination\\\"). If the general citizenry were permitted to obtain the forbidden materials through the FOIA, as the appellants urge, the purpose of the 1972 amendment would be thwarted.\\nThe appellants argue that the Act is not a qualifying \\\"nondisclosure\\\" statute because the prohibited acts, \\\"dissemination\\\" and \\\"distribution,\\\" are different from \\\"disclosure.\\\" The former two, they argue, necessarily entail a broad unsolicited dispersal rather than release of materials in response to specific, individual requests. We disagree. While the terms may be so distinguishable under some circumstances, the Act itself demonstrates that the Congress intended no such distinction here. Section 1461's prohibition against domestic dissemination of USIA information is expressly made \\\"[s]ubjeet to subsection (b)\\\" of section 1461 which directs USIA, under the heading \\\"Dissemination of information within United States,\\\" to \\\"make available\\\" program material, twelve years after its initial dissemination or preparation, to the Archivist \\\"for domestic distribution\\\" to \\\"persons seeking its release in the United States.\\\" 22 U.S.C. \\u00a7 1461(b) (emphasis added). The domestic \\\"distribution\\\" and \\\"dissemination\\\" contemplated-in this provision plainly encompass disclosure to individual requesters. It seems unlikely that the two terms were meant to bear different meanings in the immediately preceding prohibition. Perhaps more importantly, the Congress had no need to make an exception for such disclosure after 12 years unless the general dissemination and distribution bans otherwise prohibited it. In sum, the Act is an emphatic non disclosure statute forbidding all domestic distribution and dissemination except insofar as the Act itself makes exceptions and it is only via the exceptions that the Act can be said to \\\"specifically require[] disclosure.\\\" See Dissent at 346.\\nThe appellants also contend that the Act is not a nondisclosure act because it does not prohibit all disclosure of records but only disclosure to persons in this country. This argument must fail as well. The court has previously found that a limitation on the persons to whom disclosure is prohibited does not remove a nondisclosure statute from Exemption 3's ambit. See Church of Scientology of Calif. v. Internal Revenue Serv., 792 F.2d 146, 148-50 (D.C.Cir.1986) (holding Exemption 3 embraces statute prohibiting disclosure of taxpayer records excepting, inter alia, \\\"disclosure to specified private individuals (e.g., taxpayer to whom information relates) or government officials, rather than to the public at large\\\"). So too here.\\nFinally, the appellants argue that the Congress could not have intended \\\"so irrational a system\\\" that would allow some United States residents, such as those close to a national border or with friends abroad, to obtain USIA records while denying other residents access to them. We find nothing irrational in the system the Congress has established. USIA has been directed \\\"to provide for the preparation, and dissemination abroad, of information about the United States, its people, and its policies.\\\" 22 U.S.C. \\u00a7 1461(a). When USIA carries out this mandate, in some eases individuals within the United States will be able to obtain access to the information disseminated, as Congress has elsewhere explicitly recognized. See 22 U.S.C. \\u00a7 1465bb (directing that USIA \\\"shall provide for the open communication f of information and ideas through the use of television broadcasting to Cuba\\\" \\\"notwithstanding the limitation of section 1461 of this title with respect to the dissemination in the United States of information prepared for dissemination abroad to the extent such dissemination is inadvertent\\\"). The Act's prohibition of domestic dissemination by USIA is a reasonable means of minimizing such access.\\nFor the preceding reasons we hold that the material sought by the appellants is within FOIA Exemption 3 and therefore not required to be disclosed because it is \\\"exempted from disclosure\\\" by the Smith-Mundt Act, 22 U.S.C. \\u00a7 1461, 1461-la. Accordingly, the judgment of the district court is\\nAffirmed.\\n. The appellants are: Essential Information, Inc, The Multinational Monitor, Taxpayers Asset Project, Consumer Project on Technology, The Center for the Study of Responsive Law, James Love and Manon Ress.\\n. The appellants sought an electronic copy of the WIRELESS FILE, USIA's daily electronic news service, for the period July 1, 1995 through February 9, 1996, transcripts of Voice of America and Worldnet Television broadcasts for the same period and internet addresses for sites where USIA overseas programming materials are available.\\n. In light of our disposition we need not reach the district court's holding that internet addresses are not \\\"records\\\" subject to FOIA disclosure. If USIA's internet addresses are \\\"records\\\" \\u2014 and not simply \\\"a means to access\\\" records, as the district court characterized them, Mem. Op. at 2 (emphasis original), and as they seem to be \\u2014 the information they contain is exempt from disclosure to the same extent as the other USIA information and program material disseminated or distributed abroad. We also note that, according to the USIA, the appellants already have access to its only international website.\\n. The dissent's assertion that Exemption 3 is limited to \\\"statutes that protect confidential, private, or proprietary information,\\\" Dissent at 347, is without basis in the statutory language, legislative history or case law.\\n. Section 1461(a) provides in full:\\n(a) Dissemination of information abroad\\nThe Director is authorized, when he finds it appropriate, to provide for the preparation, and dissemination abroad, of information about the United States, its people, and its policies, through press, publications, radio, motion pictures, and other information media, and through information centers and instructors abroad. Subject to subsection (b) of this section, any such information (other than \\\"Problems of Communism\\\" and the \\\"English Teaching Forum\\\" which may be sold by the Government Printing Office) shall not be disseminated within the United States, its territories, or possessions, but, on request, shall be available in the English language at the Agency, at all reasonable times following its release as information abroad, for examination only by representatives of United States press associations, newspapers, magazines, radio \\u2022 systems, and stations, and by research students and scholars, and, on request, shall be made available for examination only to Members of Congress.\\n22 U.S.C. \\u00a7 1461(a) (emphasis added). For the text of section 1461(b), see infra note 7.\\n. Section 1461-la provides in full:\\nBan on domestic activities by United States Information Agency\\nExcept as provided in section 1461 of this title and this section, no funds authorized to be appropriated to the United States Information Agency shall be used to influence public opinion in the United States, and no program material prepared by the United States Information Agency shall he distributed within the United States. This section shall not apply to programs carried out pursuant to the Mutual Educational and Cultural Exchange Act of 1961 (22 U.S.C. 2451 et seq.). The provisions of this section shall not prohibit the United States Information Agency from responding to inquiries from members of the public about its operations, policies, or program.\\n22 U.S.C. \\u00a7 1461-1a.\\n. Although not permitted to distribute or disseminate the material for twelve years, USIA is required to make it available \\\"for examination only\\\" to representatives of the press, \\\"research students,\\\" \\\"scholars\\\" and members of the Congress. 22 U.S.C. \\u00a7 1461(a) (set out supra in note 4).\\n. The dissenting opinion also attempts to distinguish \\\"distribution/dissemination\\\" from \\\"disclosure\\\" on the ground that the former includes \\\"actively broadcasting or distributing information\\\" while the latter is limited to \\\"passively responding to individual requests to disclose.\\\" Dissent at 347. We are at a loss to understand how producing information in response to a request is more \\\"passive\\\" than broadcasting the same information sua sponte. Each activity (and each is an activity) involves \\\"dealing out\\\" or \\\"exposing to view\\\" USIA materials. See Dissent at 346.\\n. Section 1461(b) provides in full:\\n(b) Dissemination of information within United States\\n(1)The Director of the United States Information Agency shall make available to the Archivist of the United States, for domestic distribution, motion pictures, films, videotapes, and other material prepared for dissemination abroad 12 years after the initial dissemination of the material abroad or, in the case of such material not disseminated abroad, 12 years after the preparation of the material.\\n(2) The Director of the United States Information Agency shall be reimbursed for any attendant expenses. Any reimbursement to the Director pursuant to this subsection shall be credited to the applicable appropriation of the United States Information Agency.\\n(3) The Archivist shall be the official custodian of the material and shall issue necessary regulations to ensure that persons seeking its release in the United States have secured and paid for necessary United States rights and licenses and that all costs associated with the provision of the material by the Archivist shall be paid by the persons seeking its release. The Archivist may charge fees to recover such costs, in accordance with section 2116(c) of Title 44. Such fees shall be paid into, administered, and expended as part of the National Archives Trust Fund.\\n22 U.S.C. \\u00a7 1461(b).\"}"