Essential Info Inc v. US Info Agcy ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 1997 Decided February 10, 1998
No. 97-5017
Essential Information, Inc., et al.,
Appellants
v.
United States Information Agency,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 96cv01194)
Colette G. Matzzie argued the cause for the appellants.
David C. Vladeck was on brief.
Douglas N. Letter, Attorney, United States Department of
Justice, argued the cause for the appellee. Frank W. Hun-
ger, Assistant Attorney General, and Mary Lou Leary, Act-
ing United States Attorney, were on brief.
Before: Henderson, Randolph and Tatel, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Concurring opinion filed by Circuit Judge Henderson.
Dissenting opinion filed by Circuit Judge Tatel.
Karen LeCraft Henderson, Circuit Judge: The appellants,
who identify themselves as "researchers, scholars, organizers
and journalists," Appellant's Brief at 6,1 seek disclosure under
the Freedom of Information Act, 5 U.S.C. ss 552 et seq.,
(FOIA) of internet addresses and programming materials
generated by the United States Information Agency (USIA).2
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. s 552(b)(3)(B), namely by the
Smith-Mundt Act (Act), which prohibits USIA from "dissemi-
nat[ing]" "information" or "distribut[ing]" "program material"
within the United States, 22 U.S.C. ss 1461, 1461-1a. 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 judg-
ment on this ground.3
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1 The appellants are: Essential Information, Inc, The Multina-
tional Monitor, Taxpayers Asset Project, Consumer Project on
Technology, The Center for the Study of Responsive Law, James
Love and Manon Ress.
2 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.
3 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"--and not
simply "a means to access" records, as the district court character-
ized them, Mem. Op. at 2 (emphasis original), and as they seem to
be--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
The FOIA requires generally that "each agency, upon any
request for records which (i) reasonably describes such rec-
ords 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. s 552(a)(3). FOIA Exemption 3 shields
from the general disclosure requirement "matters that--...
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 particu-
lar criteria for withholding or refers to particular types of
matters to be withheld." 5 U.S.C. s 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 Smith-Mundt Act and we must therefore apply Exemp-
tion 3.4
Section 1461 of the Act directs that "information about the
United States, its people, and its policies" that USIA pre-
pares 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. s 1461(a), (b).5 Similarly,
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to the USIA, the appellants already have access to its only interna-
tional website.
4 The dissent's assertion that Exemption 3 is limited to "statutes
that protect confidential, private, or proprietary information," Dis-
sent at 3-4, is without basis in the statutory language, legislative
history or case law.
5 Section 1461(a) provides in full:
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. s 1461-1a.6 Each
provision contains a flat ban on "dissemination" or "distribu-
__________
(a) Dissemination of information abroad
The Director is authorized, when he finds it appropriate, to
provide for the preparation, and dissemination abroad, of infor-
mation about the United States, its people, and its policies,
through press, publications, radio, motion pictures, and other
information media, and through information centers and in-
structors 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 re-
quest, 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 sys-
tems, and stations, and by research students and scholars, and,
on request, shall be made available for examination only to
Members of Congress.
22 U.S.C. s 1461(a) (emphasis added). For the text of section
1461(b), see infra note 7.
6 Section 1461-1a provides in full:
Ban on domestic activities by United States Information
Agency
Except 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 pre-
pared by the United States Information Agency shall be dis-
tributed 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 pro-
gram.
22 U.S.C. s 1461-1a.
tion" for a twelve-year period.7 See S. Rep. No. 92-754, at
82-85 (1972) (declaring that section 1461 "is a blanket prohibi-
tion 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 nondisclo-
sure 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).
The 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, s 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. 92-754, at 85); Pub. L. No.
99-93, s 208, 99 Stat. 405, 431 (1985) (enacting section
1461-1a); Pub. L. No. 101-246, s 202, 104 Stat. 15, 49 (1990)
(adding section 1461(b) which directs USIA to deliver materi-
als to Archivist "for domestic distribution" after 12 years,
changing "[c]urrent law" which "prohibit[ed] the domestic
release of almost all USIA materials," S. Rep. 101-46, 31
(1989)); Pub. L. No. 103-236, s 232, 108 Stat. 382, 424 (1994)
(amending section 1461-1a to make clear that ban does not
prohibit responding to public inquiries). Particularly enlight-
ening are the circumstances surrounding the 1972 amend-
ment 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
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7 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 stu-
dents," "scholars" and members of the Congress. 22 U.S.C.
s 1461(a) (set out supra in note 4).
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.
The appellants argue that the Act is not a qualifying
"nondisclosure" statute because the prohibited acts, "dissemi-
nation" and "distribution," are different from "disclosure."
The former two, they argue, necessarily entail a broad unso-
licited dispersal rather than release of materials in response
to specific, individual requests.8 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 do-
mestic dissemination of USIA information is expressly made
"[s]ubject 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. s 1461(b) (em-
phasis added).9 The domestic "distribution" and "dissemina-
__________
8 The dissenting opinion also attempts to distinguish "distribu-
tion/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 2. 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 1-2.
9 Section 1461(b) provides in full:
(b) Dissemination of information within United States
(1) The Director of the United States Information Agency
shall make available to the Archivist of the United States, for
tion" contemplated in this provision plainly encompass disclo-
sure to individual requesters. It seems unlikely that the two
terms were meant to bear different meanings in the immedi-
ately preceding prohibition. Perhaps more importantly, the
Congress had no need to make an exception for such disclo-
sure 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 1.
The appellants also contend that the Act is not a nondisclo-
sure act because it does not prohibit all disclosure of records
but only disclosure to persons in this country. This argu-
ment must fail as well. The court has previously found that a
limitation on the persons to whom disclosure is prohibited
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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.
(2) The Director of the United States Information Agency
shall be reimbursed for any attendant expenses. Any reim-
bursement to the Director pursuant to this subsection shall be
credited to the applicable appropriation of the United States
Information Agency.
(3) The Archivist shall be the official custodian of the materi-
al 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.
22 U.S.C. s 1461(b).
does not remove a nondisclosure statute from Exemption 3's
ambit. See Church of Scientology of Calif. v. Internal Reve-
nue Serv., 792 F.2d 146, 148-50 (D.C. Cir. 1986) (holding
Exemption 3 embraces statute prohibiting disclosure of tax-
payer records excepting, inter alia, "disclosure to specified
private individuals (e.g., taxpayer to whom information re-
lates) or government officials, rather than to the public at
large"). So too here.
Finally, 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 dis-
semination abroad, of information about the United States, its
people, and its policies." 22 U.S.C. s 1461(a). When USIA
carries out this mandate, in some cases individuals within the
United States will be able to obtain access to the information
disseminated, as Congress has elsewhere explicitly recog-
nized. See 22 U.S.C. s 1465bb (directing that USIA "shall
provide for the open communication of information and ideas
through the use of television broadcasting to Cuba" "notwith-
standing the limitation of section 1461 of this title with
respect to the dissemination in the United States of informa-
tion prepared for dissemination abroad to the extent such
dissemination is inadvertent"). The Act's prohibition of do-
mestic dissemination by USIA is a reasonable means of
minimizing such access.
For 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. ss 1461,
1461-1a. Accordingly, the judgment of the district court is
Affirmed.
Karen LeCraft Henderson, Circuit Judge, concurring:
Although I agree that the Smith-Mundt Act is a "nondis-
closure" statute within Exemption 3, I write separately to
offer an alternative ground for affirmance, urged here by the
government, because it is at least arguably a disclosure
statute regulating rather than prohibiting disclosure. If that
is the case, I believe the appellants are foreclosed from
seeking disclosure through the FOIA under Ricchio v. Kline,
773 F.2d 1389 (D.C. Cir. 1985).1
In Ricchio, the court held that the FOIA does not govern
disclosure of transcripts of White House recordings for which
the Congress had established a separate disclosure regimen
in the Presidential Recordings and Materials Preservation
Act (Materials Act), 44 U.S.C. s 2111 note (formerly 44
U.S.C. 2107 note). The Materials Act directs the Archivist to
submit to the Congress proposed regulations for providing
public access to specified presidential materials from the
Nixon administration, balancing the interests of the public
and of President Nixon and his heirs. Relying on the Su-
preme Court's observation that "the policies of the [Materials]
Act can best be carried out under the Act itself," the court
concluded that "release of the transcripts pursuant to the
Information Act ... 'might frustrate the achievement of the
legislative goals of orderly processing and protection of the
rights of all affected persons.' " 773 F.2d at 1395 (quoting
Nixon v. Warner Communications, Inc., 435 U.S. 589, 606
__________
1 Although our decision may, as our dissenting colleague suggests,
produce some anomalous results, we must nonetheless read and
enforce the statutes as the Congress wrote them. See Busic v.
United States, 446 U.S. 398, 404 (1980) ("[I]t suffices to say that the
asserted unreasonableness flows not from ... this decision, but
rather from the statutes as Congress wrote them. If corrective
action is needed, it is the Congress that must provide it. 'It is not
for us to speculate, much less act, on whether Congress would have
altered its stance had the specific events of this case been anticipat-
ed.' ") (quoting TVA v. Hill, 437 U.S. 153, 185 (1978)); see also
Lewis Carroll, Alice in Wonderland, in The Annotated Alice 230-31
(Martin Gardner ed. 1960) ("Contrariwise, ... if it was so, it might
be; and if it were so, it would be; but as it isn't, it ain't.")
(1978) (holding petitioner had no common-law right of access
to tapes subject to Materials Act in custody of trial court)).
Because the Materials Act "provided a comprehensive, care-
fully tailored and detailed procedure designed to protect both
the interest of the public in obtaining disclosure of President
Nixon's papers and of President Nixon in protecting the
confidentiality of Presidential conversations and delibera-
tions," the court determined that "the proper method" for
obtaining access to covered materials was "by proceeding
under the Materials Act" and that the plaintiff therefore
"c[ould not] proceed under the Information Act." Id. The
same reasoning applies here.
As with the Materials Act, the Congress drafted the access
provisions of the Smith-Mundt Act to accommodate compet-
ing interests. Recognizing the benefit of making the materi-
als available to researchers and journalists as well as to its
own members, the Congress struck a balance between that
interest and the "underlying rationale for the prohibition on
domestic dissemination of USIA materials: namely that
USIA should not be engaged in domestic propaganda,"
S. Rep. No. 101-46, 31 (1989), by providing limited, "examina-
tion only" access to USIA materials. See 22 U.S.C.
s 14661(a). Later, because it "believe[d] there is little likeli-
hood that material 12 or more years old will be of significant
use for domestic propaganda purposes," the Congress direct-
ed that the materials be made generally available twelve
years after their preparation or dissemination. The access,
however, is also limited by the requirement that property
rights in the materials be protected through regulation by the
Archivist. See 22 U.S.C. s 1461(b)(3) ("The Archivist ...
shall issue necessary regulations to ensure that persons seek-
ing its release in the United States have secured and paid for
necessary United States rights and licenses....").2 I believe
that, to the extent that the Smith-Mundt Act is a disclosure
statute, its "comprehensive, carefully tailored and detailed
procedure," like that of the Materials Act, precludes obtaining
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2 The Archivist has promulgated the required regulations which
are codified at 36 C.F.R. s 1256.58.
access to USIA materials under the FOIA. See 773 F.2d at
1395.3 To conclude otherwise would "frustrate the achieve-
ment of the legislative goals" underlying the express statuto-
ry limitation on access to program materials during the first
twelve years after preparation or broadcast. See Ricchio, 773
F.2d at 1395.
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3 Church of Scientology of Calif. v. Internal Revenue Serv., 792
F.2d 146 (D.C. Cir. 1986), aff'd, 484 U.S. 9 (1987), cited by the
dissent, considered a statute that was, by the court's own character-
ization, a nondisclosure rather than a disclosure statute. To the
extent that the Smith-Mundt Act is a nondisclosure statute, it is
"covered by Exemption 3," 792 F.2d at 149, as explained in the
majority opinion.
Tatel, Circuit Judge, dissenting: Contrary to our obli-
gation to construe FOIA exemptions narrowly, John Doe
Agency v. John Doe Corp., 493 U.S. 146, 152 (1989), as well as
the longstanding requirement that congressional intent to
exempt matters from FOIA disclosure must appear in the
"actual words" of the statute, Reporters Committee for Free-
dom of the Press v. U.S. Dep't of Justice, 816 F.2d 730, 734
(D.C. Cir.), clarified, 831 F.2d 1124 (D.C. Cir. 1987), rev'd on
other grounds, 489 U.S. 749 (1989), the court today extends
FOIA's exemption for "matters ... specifically exempted
from disclosure by statute," 5 U.S.C. s 552(b)(3) (1994) (em-
phasis added), to cover a statute that specifically requires
disclosure, that has resulted in the widespread availability of
the very information the court now exempts from FOIA, and
that Congress intended only to prohibit official government
propaganda. Under the court's decision, information the
Smith-Mundt Act specifically requires USIA to make avail-
able, i.e., disclose, to the press, scholars, students, and mem-
bers of Congress, see 22 U.S.C. s 1461(a) (1994), cannot be
obtained under FOIA. Residents of southern Florida can
receive Radio Marti and TV Marti broadcasts, owners of
satellite dishes anywhere in the United States can receive
Worldnet television, domestic computer users can find materi-
als intended for foreign audiences on the agency's web pages,
and people anywhere in the country can ask friends overseas
to obtain USIA program materials for their own domestic
use, but under today's decision, these same people cannot
obtain precisely the same information through FOIA.
The court arrives at this counter-intuitive result by focus-
ing on the Smith-Mundt Act's prohibition of domestic "dis-
semination" and "distribution" of USIA program materials.
Maj. Op. at 6-7. "Dissemination" and "distribution," howev-
er, differ significantly from "disclosure," the focus of Exemp-
tion 3. The dictionary defines "disseminate" as "to spread or
send out freely or widely as though sowing or strewing seed,"
and "distribute" as "to deal out," "apportion," or "to spread
out or scatter so as to cover a surface or a space." Webster's
Third New International Dictionary 656, 660 (1993). "Dis-
close" means "to open up" or "to expose to view." Id. at 645.
Dissemination requires disclosure; disclosure requires no dis-
semination. Properly defined, then, the Smith-Mundt Act
bars the agency from actively broadcasting or distributing
information domestically, not from passively responding to
individual FOIA requests to disclose.
The statute itself recognizes the difference between "dis-
semination" and "disclosure." For example, while prohibiting
domestic "dissemination," section 1461 mandates domestic
"disclosure" by requiring USIA to make available program
materials in English to journalists and researchers for exami-
nation at the agency, and to members of Congress more
generally. 22 U.S.C. s 1461(a). Section 1461-1a prohibits
USIA from using its funds to "distribute" program materials
"within the United States," while explicitly "not prohibit[ing]
[the agency] from responding to inquiries from members of
the public about its operations, policies, or programs." Id.
s 1461-1a. If Congress had intended to deny FOIA access to
program materials, why would it have required the agency to
answer citizens' questions about program materials? In a
similar vein, having specifically authorized USIA to "dissemi-
nate" program materials by radio, television, and other means
certain to result in some spillover to domestic audiences, see,
e.g., id. s 1465bb (mandating television broadcasting to Cuba,
"notwithstanding the limitation of section 1461 ... to the
extent such [domestic] dissemination is inadvertent"), why at
the same time would Congress have prohibited domestic
disclosure of those very same materials?
Congress used the words "dissemination" and "distribu-
tion," instead of "disclosure," quite deliberately. Responding
to our now colleague Senator James Buckley's plan to air a
USIA film entitled "Czechoslovakia 1968" over New York
public television, as well as to a letter from the Acting
Attorney General stating that the broadcast would not violate
the Smith-Mundt Act, see S. Rep. No. 92-754, at 83-85 (1972),
Congress limited congressional access to examination only
and added the agency dissemination ban to prevent the
government from "propagandizing the American public," id.
at 85, not to bar USIA from disclosing information to individ-
ual requestors pursuant to FOIA. See Pub. L. No. 92-352,
s 204, 86 Stat. 489, 494 (1972) (now codified at 22 U.S.C.
s 1461(a)). In fact, this 1972 amendment broadened the
statute's public access provision, adding scholars and students
to the list of individuals eligible to examine program materi-
als. Id.Relying on section 1461(b)'s requirement that USIA trans-
fer its program materials twelve years after their initial
dissemination abroad to the National Archives "for domestic
distribution" to "persons seeking [their] release in the United
States," the court concludes that Congress equated "dissemi-
nation" and "distribution" with "disclosure." Maj. Op. at 6-7.
But section 1461(b) says only that when USIA transfers its
materials to the Archives after twelve years, the Archives
must have procedures for releasing them to requesting indi-
viduals. Believing that "there is little likelihood that material
12 or more years old will be of significant use for domestic
propaganda purposes," Congress created section 1461(b) to
"provide[ ] for the automatic release of USIA films and
materials in the United States after 12 years." S. Rep. No.
101-46, at 31 (1989). This provision tells us nothing about
USIA's current obligations to persons seeking FOIA disclo-
sure of program materials.
By protecting from FOIA disclosure nonconfidential infor-
mation widely available outside the United States and, to an
increasing extent, domestically, the court breaks with long-
standing precedent. Until this case, we have limited Exemp-
tion 3 to statutes that protect confidential, private, or proprie-
tary information, such as patent applications, Irons and Sears
v. Dann, 606 F.2d 1215, 1221 (D.C. Cir. 1979); CIA intelli-
gence sources and methods, Gardels v. CIA, 689 F.2d 1100,
1103 (D.C. Cir. 1982); grand jury proceedings, Fund for
Const'l Gov't v. National Archives and Records Serv., 656
F.2d 856, 868 (D.C. Cir. 1981); tax returns and return
information, Moody v. IRS, 654 F.2d 795, 797 (D.C. Cir.
1981); and meetings of the Defense Nuclear Facilities Safety
Board discussing highly sensitive matters regarding nuclear
facilities, Natural Resources Defense Council, Inc. v. Defense
Nuclear Facilities Safety Bd., 969 F.2d 1248, 1251 (D.C. Cir.
1992) (under the analogous Exemption 3 to the Government
in the Sunshine Act, 5 U.S.C. s 552b(c)(3)).
"The basic purpose of FOIA is 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, 242 (1978). Congress has ex-
pressed no intent to keep USIA program materials confiden-
tial or exempt them from FOIA disclosure. Its only concern,
stated originally in 1972 and reiterated in a 1985 amendment
prohibiting USIA funds from being "used to influence public
opinion in the United States," Pub. L. No. 99-93, s 208, 99
Stat. 405, 431 (1985) (codified at 22 U.S.C. s 1461-1a), is to
protect the American people from official government propa-
ganda. Fulfilling individual FOIA requests for specific pro-
gram materials would not frustrate this purpose. Extending
Exemption 3 to widely available, nonconfidential USIA mate-
rials will frustrate FOIA's mandate for open government. I
respectfully dissent.
* * *
In her concurring opinion, Judge Henderson suggests that
our decision in Ricchio v. Kline, 773 F.2d 1389 (D.C. Cir.
1985), provides an alternative basis for exempting USIA
program materials from FOIA disclosure. See Conc. Op.
Unlike the statutory scheme involved in Ricchio, however, the
Smith-Mundt Act creates no " 'comprehensive scheme' ...
duplicating [the rules and procedures] of FOIA," Church of
Scientology v. IRS, 792 F.2d 146, 149 (D.C. Cir. 1986), aff'd,
484 U.S. 9 (1987), for public access to USIA program materi-
als. Although under Ricchio, a statute need not exactly
mirror FOIA's disclosure scheme, the Smith-Mundt Act's
public access provision does not come remotely close. That
provision applies only to certain classes of requestors (press,
scholars, students, and members of Congress), prohibits re-
questors from obtaining verbatim copies, Gartner v. USIA,
726 F. Supp. 1183, 1187 n.5 (S.D. Iowa 1989), gives USIA no
means to assert privilege or exemption claims, and provides
for no judicial review equivalent to FOIA procedures. 22
U.S.C. s 1461. FOIA access, moreover, would neither "frus-
trate the achievement of the legislative goals" of the Smith-
Mundt Act's public access provision, Ricchio, 773 F.2d at
1395, nor make that provision superfluous. FOIA requires
that requests for information "reasonably describe[ ]" such
information, 5 U.S.C. s 552(a)(3); by comparison, a research-
er utilizing the Smith-Mundt Act's public access provision can
examine the entire body of USIA program materials without
specifically identifying the information sought, 22 U.S.C.
s 1461(a). The Smith-Mundt Act also requires USIA to
make program materials available in English, id.; FOIA
contains no similar translation requirement.
In the thirteen years since Ricchio, we have not applied it
to any other statute. We rejected reasoning similar to Ric-
chio's in Church of Scientology, finding it "impossible to
conclude that [FOIA] was sub silentio repealed by s 6103" of
the Internal Revenue Code. 792 F.2d at 149. The Ninth
Circuit refused to apply Ricchio to Rule 32 of the Federal
Rules of Criminal Procedure and 18 U.S.C. s 4208 in Julian
v. U.S. Department of Justice, 806 F.2d 1411, 1420 (9th Cir.
1986), aff'd, 486 U.S. 1 (1988). Ricchio has no applicability
here either.