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In some situations, in camera inspection of requested documents will be necessary and appropriate. But it need not be automatic. An agency should be given the opportunity, by means of detailed affidavits or oral testimony, to establish to the satisfaction of the court that the documents sought fall clearly beyond the range of material that would be available to a private party in litigation with the agency. The burden is, of course, on the agency resisting disclosure, 5 U.S.C.S. § 552(a)(3), and if it fails to meet its burden without in camera inspection, the court may order such inspection. But the agency may demonstrate, by surrounding circumstances, that particular documents are purely advisory and contain no separable, factual information. A representative document of those sought may be selected for in camera inspection. And, of course, the agency may itself disclose the factual portions of the contested documents and attempt to show, again by circumstances, that the excised portions constitute the barebones of protected matter. In short, in camera inspection of all documents is not a necessary or inevitable tool in every case. Others are available.
Respondent Members of Congress brought suit under the Freedom of Information Act of 1966 to compel disclosure of nine documents that various officials had prepared for the President concerning a scheduled underground nuclear test. All but three were classified as Top Secret or Secret under E. O. 10501, and petitioners represented that all were inter-agency or intra-agency documents used in the Executive Branch's decisionmaking processes. The District Court granted petitioners' motion for summary judgment on the grounds that each of the documents was exempt from compelled disclosure by 5 U. S. C. § 552 (b)(1) (hereafter Exemption 1), excluding matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," and § 552 (b)(5) (hereafter Exemption 5), excluding "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." The Court of Appeals reversed, concluding (a) that Exemption 1 permits nondisclosure of only the secret portions of classified documents but requires disclosure of the nonsecret components if separable, and (b) that Exemption 5 shields only governmental "decisional processes" and not factual information unless "inextricably interwined with policy-making processes." The District Court was ordered to examine the documents in camera to determine both aspects of separability.
Were the respondent Members of Congress entitled to demonstrate the propriety of withholding any documents, or portions thereof, by means short of submitting them for in camera inspection?
The court reversed the appeals court decision that Exemption 5 of FOIA, 5 U.S.C.S. § 552(b)(5), shielded only the decisional process reflected in government memoranda and not factual information unless the factual information was inextricably intertwined with policy making processes. The court held that the remand ordered by the appeals court was unnecessarily rigid. Petitioners were entitled to attempt to demonstrate the propriety of withholding any documents, or portions thereof, by means short of submitting them for in camera inspection.