In The

Supreme Court of the United States




Decided May 24, 1982

Justice O’Connor, Dissenting

Topic: Privacy*Court vote: 5–4
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Joining O'Connor opinion: Justice MARSHALL Justice MARSHALL
Citation: 456 U.S. 615 Docket: 80–1735Audio: Listen to this case's oral arguments at Oyez

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JUSTICE O'CONNOR, with whom JUSTICE MARSHALL joins, dissenting.

Justice Frankfurter once explained the limits of statutory construction as follows:

[T]he courts are not at large.... They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition, certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature.... A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction.... * * * *" [T]he only sure safeguard against crossing the line between adjudication and legislation is an alert recognition of the necessity not to cross it and instinctive, as well as trained, reluctance to do so.

Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 533, 535 (1947).

The Court does not approach this case in that spirit. Instead, it redrafts the statutory phrase "investigatory records compiled for law enforcement purposes" to exempt investigatory records that "were not compiled for law enforcement purposes," ante at 456 U. S. 623 (emphasis added). [ Footnote 2/1 ] Unfortunately, none of the usual grounds of statutory construction supports the Court's result. First, there is no doubt that, if Exemption 7 is given the straightforward interpretation based on its plain language that the Court concedes is both "tenable," ante at 456 U. S. 624, and "plausible," ante at 456 U. S. 631, the name check summaries do not qualify for exemption. Second, the rather sparse legislative history of the Exemption provides, as the Court admits, ante at 456 U. S. 623, "[n]o express answer" regarding the meaning of the Exemption, leaving the Court no reason for overriding the usual presumption that the plain language of a statute controls its construction. Finally, the straightforward interpretation of Exemption 7, rejected by the Court, does not lead to consequences so absurd that one is forced to conclude that Congress could not have meant what it said in the Exemption.

Under these circumstances, the Court's rejection of the plain language of the Exemption must be viewed as an effort to perfect the FOIA by judicial alteration. Since reform of legislation is a task constitutionally allocated to Congress, not this Court, I believe the Court today errs. I respectfully dissent.



[S]tatutory construction 'must begin with the language of the statute itself,' and, '[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.'

Bread Political Action Committee v. FEC, 455 U. S. 577, 455 U. S. 580 (1982) (citations omitted). In approaching a statute, moreover, a judge must presume that Congress chose its words with as much care as the judge himself brings to bear on the task of statutory interpretation. I begin, therefore, by focusing attention on the pertinent language of Exemption 7.

At issue in this case [ Footnote 2/2 ] is the meaning of the seven-word phrase Congress used to describe the documents it intended to exempt: "investigatory records compiled for law enforcement purposes." The Exemption's syntax is plain and unambiguous: "records" is twice modified, first, by "investigatory" and then by "compiled for law enforcement purposes." Congress evidently meant to exempt "records" that are both "investigatory" and "compiled for law enforcement purposes." [ Footnote 2/3 ]

Since neither of the parties before this Court contends that the District Court erred in finding that the records at issue, though perhaps "investigatory," were "not compiled for law enforcement purposes," ante at 456 U. S. 623, the case would, at first blush, seem to be over: the documents withheld by the FBI do not fit within the language of the Exemption and, therefore, must be released to the respondent. [ Footnote 2/4 ]

The logic of this straightforward result is all the more compelling in light of the canons of construction peculiar to FOIA cases. As we have emphasized before, the enumerated exemptions to the FOIA "[were] explicitly made exclusive," EPA v. Mink, 410 U. S. 73, 410 U. S. 79 (1973), and "must be narrowly construed." Department of Air Force v. Rose, 425 U. S. 352, 425 U. S. 361 (1976) (citations omitted). [ Footnote 2/5 ] The reason for preferring a narrow construction is simply that " the recognized principal purpose of the FOIA requires us to choose that interpretation most favoring disclosure.'" Id. at 425 U. S. 366, quoting Vaughn v. Rosen, 173 U.S.App.D.C. 187, 193, 523 F.2d 1136, 1142 (1975). Even if it were possible to concoct genuine doubts about the plain meaning of Exemption 7's language, therefore, those doubts would have to be resolved in favor of disclosure.

Under the conceded facts of the present case, however, no doubts arise. [ Footnote 2/6 ] The records at issue were not "compiled for law enforcement purposes." The statutory language thus clearly proclaims that the documents are not exempt from disclosure. As Chief Justice Marshall wrote more than a century and a half ago:

The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction.

United States v. Wiltberger, 5 Wheat. 76, 18 U. S. 95 -96 (1820).


Of course, while it is elementary that the plain language interpretation of a statute enjoys a robust presumption in its favor, [ Footnote 2/7 ] it is also true that Congress cannot, in every instance, be counted on to have said what it meant, or to have meant what it said. Statutes, therefore, "are not to be construed so strictly as to defeat the obvious intention of the legislature." Id. at 18 U. S. 95. Thus, a "clearly expressed legislative intention" to the contrary could dislodge the meaning apparent from the plain language of Exemption 7, even though that meaning "must ordinarily be regarded as conclusive," Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980). [ Footnote 2/8 ]

The Court, however, rejects the plain language of Exemption 7 without identifying any "obvious" evidence pf a "clearly expressed" congressional intention to have Exemption 7 mean something other than what it says. [ Footnote 2/9 ] In fact, the Court candidly admits that "[n]o express answer is provided... by the legislative history," ante at 456 U. S. 623, which explains, perhaps, why the Court's opinion is nearly devoid of references to it.

The Court cites the legislative history of the 1974 amendment to Exemption 7 no more than four times during the course of its opinion. None of those citations provides anything like sufficient grounds for displacing the plain meaning of the Exemption. [ Footnote 2/10 ] In fact, none of the Court's four citations directly addresses the question. In sum, the Exemption's legislative history provides no basis whatever for ignoring the words of the Act. [ Footnote 2/11 ]


Even without the legislative history on its side, to be sure, the Court might be entitled to reject the plain language of Exemption 7 in order to avoid "patently absurd consequences," United States v. Brown, 333 U. S. 18, 333 U. S. 27 (1948), that Congress could not possibly have intended. The Court, however, cannot, and does not, claim that the plain language of Exemption 7 leads to such results, though the Court does level a lesser charge. In the Court's words:

The Court of Appeals would protect information compiled in a law enforcement record when transferred in original form to another agency for nonexempt purposes, but would withdraw that protection if the same information or record is transmitted in slightly different form. In terms of the statutory objectives, this distinction makes little sense.

Ante at 456 U. S. 628 (footnote omitted). In short, the Court accuses Congress of having arbitrarily drawn the line between exempt and nonexempt materials.

Congress, however, ordinarily is free to draw lines without cavil from this Court, so long as it respects the constitutional proprieties. We do not, and should not, make it our business to second-guess the Legislature's judgment when it comes to such matters. Line-drawing, after all, frequently requires arbitrary decisions that cannot sensibly be subjected to judicial review. [ Footnote 2/12 ]

"In terms of the statutory objectives," moreover, it is plain that the principal purpose of the FOIA was "to establish a general philosophy of full agency disclosure," S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965), in order "to permit access to official information long shielded unnecessarily from public view," even if it must come from "unwilling official hands." EPA v. Mink, 410 U.S. at 410 U. S. 80. It scarcely needs to be repeated that Congress' ultimate objective in requiring such disclosure was

to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.

NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 437 U. S. 242 (1978) (citations omitted). Clearly, the disclosure of the name check summaries required by the plain language of Exemption 7 comports with this statutory objective, since it mandates the release of documents that the District Court found to have been compiled for political, not "law enforcement," purposes.

Unquestionably, of course, Congress' intent in enacting the FOIA was not single-mindedly to require disclosure whatever the costs. Congress realized that, under certain circumstances, the costs of disclosure exceed the benefits. Congress weighed those costs and benefits, and recorded the results of its deliberations in the "clearly delineated statutory language," S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965), of the FOIA's nine exclusive exemptions. The Senate Committee described the legislative balancing process:

It is not an easy task to balance the opposing interests, but it is not an impossible one, either.... Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest possible disclosure.


Once having completed the arduous and demanding task of balancing interests, and having recorded the results in the nine enumerated exemptions from the FOIA, Congress then attempted to insulate its product from judicial tampering and to preserve the emphasis on disclosure by admonishing that the "availability of records to the public" is not limited, "except as specifically stated." 5 U.S.C. § 552(c) (1976 ed., Supp. IV) (emphasis added). The Court now presumes to suggest that the balance as struck in Exemption 7 "makes little sense" "[i]n terms of the statutory objectives." Ante at 456 U. S. 628 (footnote omitted). The statutory objectives, however, point in different directions, demanding a balance between the Act's primary focus on disclosure and other, sometimes equally compelling, interests. The particular balance struck by Congress and enshrined in Exemption 7 may be open to attack as ill-advised, but, exactly because it represents a compromise between competing policies, it cannot be said to lead to results so "patently absurd" that a court can only conclude that Congress did not mean what it said.

In short, if the Court hopes to support its result on the basis that a straightforward interpretation of the statute "makes little sense," the Court errs, unless, of course, the "sense" to which the Court refers is to be found not in logic, but in the Court's view of what makes "sense" as a matter of public policy.


To reach its result, the Court assumes that, through inadvertence or inattention, Congress' pen slipped while amending Exemption 7 in 1974. Proceeding on this basis, the Court helpfully undertakes to rewrite the Exemption, substituting for the statutory phrase "investigatory records compiled for law enforcement purposes" something like "records containing investigatory information originally gathered for law enforcement purposes."

As the Court is quick to point out, its new creation has advantages. The Court notes that "[t]he reasons for an Exemption 7 exemption" might apply to "information in a law enforcement record [that has been] recompiled in another document for a non-law enforcement function." Ante at 456 U. S. 630. The Court then suggests that, without its redaction of Exemption 7, no guarantee would exist that some other provision of the FOIA would halt disclosure. For this reason, the Court candidly concludes that

[i]t is therefore critical that the 'compiled for law enforcement' requirement be construed to avoid the release of information that would produce... undesirable results.

Ibid. Evidently, the Court arrives at this conclusion not because the language of Exemption 7 requires it, not because the legislative history supports it, not because the statute would have "absurd consequences" otherwise, but rather because "the statesmanship of policymaking... wisely suggest[s]" it. Frankfurter, 47 Colum.L.Rev. at 533.

It is not the function of this Court, however, to apply the finishing touches needed to perfect legislation. Our job does not extend beyond attempting to fathom what it is that Congress produced, blemished as the Court may perceive that creation to be. Our task is solely to give effect to the intentions, as best they can be determined, of the Congress that enacted the legislation. Absent compelling evidence requiring a contrary conclusion, the best indication of Congress' intent is Congress' own language. Therefore, I dissent.


[ Footnote 2/1 ]

Because the Government did not challenge in this Court or in the Court of Appeals the finding of the District Court that the name check summaries at issue had not been compiled for law enforcement purposes, the Court properly assumes the validity of that finding. The District Court explained its ruling as follows:

The document at issue concerns information requested by and transmitted to the Nixon White House concerning eleven individuals. Each of these eleven individuals has been prominently associated with liberal causes and/or has been outspoken in their opposition to the war in Indochina that was being waged by this nation at that time.... The defendants contend that the White House 'name check' requests qualify as records compiled for law enforcement purposes because the White House has special security and appointment functions. At no point in their pleadings do the defendants relate these broad and general duties to the individuals about whom information was requested from the FBI. Thus, there has been absolutely no showing that these particular records were compiled for law enforcement purposes. Accordingly, the defendants have failed to meet their burden, and summary judgment will be granted in favor of the plaintiff on this point.

App. to Pet. for Cert. 27a.

[ Footnote 2/2 ]

The Court rephrases the "sole question for decision" as

whether information originally compiled for law enforcement purposes loses its Exemption 7 protection if summarized in a new document not created for law enforcement purposes.

Ante at 456 U. S. 623. The question presented by this case, however, is simply whether the contested documents are "investigatory records compiled for law enforcement purposes" within the meaning of Exemption 7.

[ Footnote 2/3 ]

Strictly speaking, the Exemption is narrower than stated in text, since the Act also provides that

[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt,

5 U.S.C. § 552(b). In effect, then, Exemption 7 shields only those "reasonably segregable portion[s]" of "records" that are both "investigatory" and "compiled for law enforcement purposes."

[ Footnote 2/4 ]

The Court claims "[n]o express answer" to the question presented by the case "is provided by the statutory language," ante at 456 U. S. 623. Apparently, the Court's assertion is intended to state the Court's conclusions that the language of the statute does not mean what it says, and that, therefore, a straightforward reading of the statute is "formalistic," ante at 456 U. S. 631. The statutory language does provide an "express answer," though not one to the Court's liking.

[ Footnote 2/5 ]

Courts frequently refer to "the oft-repeated caveat that FOIA exemptions are to be narrowly construed," ante at 456 U. S. 630. E.g., Founding Church of Scientology of Washington, D.C., Inc. v. Bell, 195 U.S.App.D.C. 363, 367-368, 603 F.2d 945, 949-950 (1979) ("[t]he legislative history of the Act and the 1974 amendments to it support a narrow construction of the exemptions"); New England Medical Center Hospital v. NLRB, 548 F.2d 377, 384 (CA1 1976) (" disclosure, not secrecy, is the dominant objective of the Act,' and... exemptions are to be `narrowly construed'") (citations omitted); Charlotte-Mecklenburg Hospital Authority v. Perry, 571 F.2d 195, 200, n. 15 (CA4 1978) ("Exemptions in the FOIA are to be `narrowly construed,' with all doubts resolved in `favoring disclosure'" (citations omitted); Cox v. United States Dept. of Justice, 576 F.2d 1302, 1305 (CA8 1978) ("The exemptions provided by subsection (b) `must be narrowly construed'" (citation omitted)).

The Act itself emphasizes that it "does not authorize withholding of information or limit the availability of records to the public, except as specifically stated...." 5 U.S.C. § 552(c) (1976 ed., Supp. IV) (emphasis added). Moreover, the legislative histories of the Act and of the 1974 amendments dictate a narrow construction of the exemptions to the FOIA. See, e.g., S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965) (the FOIA was enacted "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language" (emphasis added)); S.Rep. No. 93-854, p. 6 (1974), reprinted in House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974 (Pub.L. 93-502), Source Book, 94th Cong., 1st Sess., 158 (Joint Comm. Print 1975) (hereafter cited as Source Book).

[ Footnote 2/6 ]

According to the Court, the phrase "investigatory records compiled" might have been intended to mean something like "investigatory information gathered." The Court, of course, cannot claim that the ordinary, everyday meanings of the words "records" and "compiled" are ambiguous. Instead, as JUSTICE BLACKMUN suggests, ante at 456 U. S. 632, "the Court has simply substituted the word information' for the word `records' in Exemption 7(C)."

Notably, the Court does not attempt to cite cases interpreting the word "record" as used in the FOIA to refer to information apart from the particular tangible forms in which that information is recorded. In fact, this Court itself has said that the "[FOIA] deals with ' agency records,' not information in the abstract." Forsham v. Harris, 445 U. S. 169, 445 U. S. 185 (1980). Surely, for example, a complete summary in different words, no matter how accurate, of all the information contained in an agency record would not satisfy an FOIA request for that record.

[ Footnote 2/7 ]

See, e.g., TVA v. Hill, 437 U. S. 153, 437 U. S. 184, n. 29 (1978) ("[w]hen confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning") (BURGER, C.J.).

[ Footnote 2/8 ]

The English practice, by contrast, excludes external evidence from the process of statutory construction. Under the classical English approach,

[i]t was permissible to consider what the law was before the statute, what 'mischief' the statute was meant to remedy, and what the statute actually said,


it was not permissible to refer to the debates in Parliament for light on what the statute meant, nor to the changes which were made in the original bill before it became an act.

T. Plucknett, A Concise History of the Common Law 335 (5th ed.1956). This "wooden English doctrine" of excluding consideration of legislative history has been rejected by this Court "since the days of Marshall," as a "pernicious oversimplification," United States v. Monia, 317 U. S. 424, 317 U. S. 431 -432 (1943) (Frankfurter, J., dissenting).

[ Footnote 2/9 ]

The Court does suggest, in effect, that Congress loosely drafted the statute, and intended to refer to "information" when it wrote "records." In support of its position, the Court cites instances in which a few Members of Congress, in the heat of floor discussions and debates, seemed to use the terms "documents," "records," "matters," and "information" rather freely. Ante at 456 U. S. 625 -626, and n. 9. Because these discussions did not focus on the distinction created by the Court's construction of Exemption 7, they hardly can be considered to be the "clearly expressed legislative intention to the contrary," Bread Political Action Committee v. FEC, 455 U. S. 577, 455 U. S. 580 (1982), required to overcome the presumption in favor of the plain language of a statute.

[ Footnote 2/10 ]

To see how little support those citations provide for the Court's position, it is only necessary to examine them. First, as noted in n. 9, supra, the Court cites the legislative history to show that some Members of Congress, in the heat of debate over the wisdom of the Exemption, used terms such as "documents," "records," "matters," and "information" interchangeably. Ante at 456 U. S. 625 -626, and n. 9. Second, the Court quotes a Congressman's statement that the Exemption requires the Government to specify some harm before the Government can successfully resist disclosure. Ante at 456 U. S. 627. Third, the Court cites the legislative history to show that Exemption 7 was enacted to override decisions of the Court of Appeals for the District of Columbia Circuit, which had expansively interpreted the Exemption's predecessor. Ante at 456 U. S. 627, and n. 11. And finally, the Court cites correspondence between President Ford and Members of Congress supporting the view that the protection of Exemption 6 does not fully overlap the protection of Exemption 7. Ante at 456 U. S. 629 -630, n. 13. In short, none of these citations directly supports the Court's result.

The legislative history of the 1974 amendment to Exemption 7 is summarized in NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 437 U. S. 226 -234 (1978).

[ Footnote 2/11 ]

Significantly, however, the legislative history of the 1974 amendment shows that Congress was aware of specific instances of alleged misconduct by the FBI and hoped the more liberal disclosure mandated by the amendment would discourage such incidents. See, e.g., 120 Cong.Rec. 17039 (1974), Source Book 348 (remarks of Sen. Weicker); 120 Cong.Rec. 36866-36867 (1974), Source Book 440-441 (remarks of Sen. Kennedy); 120 Cong.Rec. 36872 (1974), Source Book 453 (remarks of Sen. Hart).

[ Footnote 2/12 ]

Moreover, the Court is too quick to find Congress' distinction to "mak[e] little sense." In fact, whatever the merits of the line Congress adopted, it is comprehensible.

To understand why, one need realize only that a summary often provides as much information about the individual who summarizes as it does about the material summarized. The summaries of the opinions of this Court carried in the media, for example, frequently provide a perspective not only on the work of the Court, but also on the perceptions and judgment of the reporters and their editors.

Photocopies, on the other hand, indicate nothing about the purposes and perceptions of the persons responsible for their creation. Any significance a photocopy may have derives exclusively from its content, and not from the process of its creation. Indeed, the Government usually satisfies an FOIA request by releasing a photocopy while retaining the original. A photocopy, moreover, inevitably discloses the entire original that it duplicates, while a summary discloses its sources only in part.

Thus, it is not true that the distinction Congress drew "makes little sense." A rational Congress could have thought that a summary is likely to provide sufficient insight into the purposes of its creators and requesters to justify its disclosure under the FOIA, if it was "compiled" for other than "law enforcement purposes." The same Congress, furthermore, could have concluded that a photocopy, which can never convey anything other than the entire contents of the original document, should not be disclosed if the original is exempt from disclosure.

Of course, there is no evidence that Congress thought about this distinction, and Congress plainly could not have considered the distinction as applied to the facts of the present case. The point, however, is only that the line drawn by the language of the statute does not lead to patently absurd consequences. Whether that distinction is well advised as a matter of sound policy is, of course, entirely another matter -and not for this Court.

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