UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: August 12, 1982.
DE LAURENTIIS, ANSELMO DE LAURENTIIS, FIORINDA, HIS WIFE, APPELLANTS
HONORABLE ALEXANDER M. HAIG, JR., SECRETARY OF STATE
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Aldisert and Weis, Circuit Judges and Re, Chief Judge.*fn*
Author: Per Curiam
The question for decision is whether the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), exempts from its general mandate of disclosure certain United States Department of State documents pertaining to the denial of an immigrant visa request. Appellants are Anselmo DeLaurentiis, an Italian citizen currently residing in Italy, and his wife, Fiorinda, a native-born United States citizen currently residing in Philadelphia. The district court granted summary judgment in favor of the Secretary of State, determining that § 222(f) of the Immigration and Nationality Act, 8 U.S.C. § 1202(f), qualifies as an existing statute under exemption 3 of FOIA, 5 U.S.C. § 552(b)(3).
Exemption 3 of the Act provides:
(b) This section does not apply to matters that are --
(3) specifically exempted from disclosure by statute (other than § 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 information to be withheld.
The documents at issue pertain to the issuance or refusal of a visa. Release of these documents is regulated by § 222(f) of the Immigration and Nationality Act, 8 U.S.C. § 1202(f):
The records of the Department of State and diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States, except that in the discretion of the Secretary of State certified copies of such records may be made available to a court which certifies that the information contained in such record is needed by the court in the interest of the ends of justice in a case pending before the court.
We affirm the grant of summary judgment in favor of the Secretary of State for the reasons set forth by then District Judge Edward R. Becker. We adopt as our own the following portions of Judge Becker's opinion:*fn1
We believe that § 222(f) of the Immigration and Nationality Act squarely falls under exemption 3(B) of FOIA. We reach this conclusion: (1) from the plain language of § 222(f); (2) from an analysis of the policy basis for the statutes and the statutory amendments which constitute exemption 3(B); and (3) the legislative history of exemption 3(B) itself.
A. The Plain Language and Policy of Exemption 3(B)
We start with the plain language of § 222(f) and conclude that § 222(f) qualifies on its faces as an exempting statute under exemption 3(B). This exemption provides that a statute establishing "particular criteria for witholding " or referring to "particular types of information to be withheld " is an exempting statute under FOIA. While § 222(f) does not "establish particular criteria for withholding, " It does refer "to particular types of information to be withheld. " Section 222(f) provides that "records of the Department of State and diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential. . . . " This category of information is sufficiently delimited to fit within the statutory language.
Exemption 3 resulted from Congress' dissatisfaction with the broad administrative discretion in the withholding of documents under FOIA permitted by the Supreme Court's decision in Administrator, Federal Aviation Administration v. Robertson, 422 U.S. 255, 45 L. Ed. 2d 164, 95 S. Ct. 2140 (1975) [" FAA Administrator "]. In that case, the Court ruled that a statute permitting an administrative agency to withhold information upon a written objection when, in the judgment of the agency, "a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public, " id. 259 n.4, qualified as an exempting statute under FOIA. Congress' efforts to curtail such broad administrative discretion in withholding agency records produced the present exemption 3. See generally American Jewish Cong. v. Kreps, 187 U.S. App. D.C. 413, 574 F.2d 624, 627-28 (D.C. Cir. 1978). Section 222(f) does not authorize the unfettered discretion which Congress found objectionable in FAA Administrator. In that case, the statute permitted withholding of "information contained in any application, report, or document " filed pursuant to the full panoply of laws establishing and governing the federal aviation program or otherwise obtained by the Civil Aeronautics Board or the FAA Administrator. Here, § 222(f) limits the Secretary's withholding authority to only those documents pertaining to the issuance or refusal of entry visas. The potential for widespread administrative discretion over the withholding of a vast category of documents is simply lacking in § 222(f).
We find precedent for our conclusion that § 222(f) qualifies as an exemption 3(B) statute in Irons & Sears v. Dann, 196 U.S. App. D.C. 308, 606 F.2d 1215 (D.C. Cir. 1979), where a similarly formulated statute governing the handling of patent applications was found by the United States Court of Appeals for the District of Columbia to qualify as a 3(B) exempting statute. In Irons & Sears v. Dann, appellants sought access under FOIA to all decisions of the Patent and Trademark Office disposing of requests by would-be patentees for a filing date earlier than the one initially assigned to their applications. The Patent and Trademark Office refused to provide such information, arguing that the information requested was covered by a 3(B) exempting statute, § 122 of the Patent Act, 35 U.S.C. § 122 (1976), which provides:
Applications for patents shall be kept in confidence by the Patent and Trademark Office and no information concerning the same given without authority of the applicant or owner unless necessary to carry out the provisions of any Act of Congress or in such special circumstances as may be determined by the Commissioner.
In finding that § 122 of the Patent Act was a withholding statute under exemption 3(B),*fn2 the Court noted:
The mere presence of some residual administrative discretion does not take § 122 out of exemption 3. It is quite clear that the requirements set forth in that exemption are phrased in the disjunctive, and it is therefore sufficient if either prong of the proviso is satisfied. We believe that § 122 does satisfy the second prong because it refers to particular types of matters to be withheld -- namely, patent applications and information concerning them.
Id. 1220-21 (emphasis supplied, footnote omitted).
Irons & Sears shows that a statute providing that the withholding of applications and information concerning them, even though such withholding may be permissive, may be precise enough to qualify as a statute referring to particular types of matters to be withheld as to qualify under exemption 3(B). Section 222(f) of the Immigration and Nationality Act is analogous to § 122 of the Patent Act in this respect. Section 222(f) does not allow the Secretary of State to withhold a limitless number of documents in his discretion. The statute only empowers him to withhold records pertaining to the issuance or refusals of visas or permits to enter the United States. The statute is therefore an exempting statute under exemption 3(B) because it "refers to particular types of matters to be withheld. "
Two other courts have found § 222(f) to be an exempting statute under exemption 3. In Church of Scientology of California v. Department of State, 493 F. Supp. 418, 423 (D.D.C. 1980), Judge Robinson, interpreting the statutes on their face, found § 222(f) to be a withholding statute under exemption 3. Regrettably, Judge Robinson did not explain whether § 222(f) fell under clause A or the first or second parts of clause B of exemption 3. In Serbian Eastern Orthodox Diocese [ v. Department of State, no. 77-1413 (D.D.C., Dec. 30, 1977)], Judge Pratt noted that the legislative history to exemption 3(B) made explicit reference to § 222(f) as an example of a qualifying statute, and concluded that "the provisions for limited disclosure satisfied the requirement of exemption 3(B) that the statute establish particular criteria for withholding or refer to particular types of matter to be withheld. " Id., [slip op. at 4]. We are in agreement with Judge Pratt, for the legislative history does, indeed, indicate that Congress intended § 222(f) to qualify as an exempting statute under exemption 3(B). Before developing this point, however, we must detail the general legislative history of the present exemption 3(B).
B. The Legislative History of Exemption 3(B)
Exemption 3(B) originated in a section of H.R. 11656, which was introduced in 1976 in response to FAA Administrator. In addition to containing provisions governing the openness of government meetings, H.R. 11656 provided that information may be withheld by a government agency if the information was "required to be withheld from the public by a statute establishing particular types of information. " Sourcebook [:Legislative History, Text and Other Documents, Government in the Sunshine Act] 474. That bill was referred to the House Committee on Government Operations, which reported it without any change in this language and then referred it to the House Judiciary Committee. The Judiciary Committee reported H.R. 11656, after amending it so that information could be withheld when it was "required or permitted to be withheld from the public by any statute establishing particular criteria or referring to particular types of information. " Sourcebook, supra, at 511 (emphasis supplied). The Judiciary Committee report accompanying the bill contained a significant footnote which indicated that § 222 of the Immigration and Nationality Act was intended to be included as an exemption 3 withholding statute.*fn3
The Judiciary Committee then committed H.R. 11656 to the Committee of the Whole House where the entire bill was subjected to an amendment in the nature of a substitute submitted by Representative Flowers. The Flowers amendment, however, merely incorporated the 3(B) language in the bill reported by the Judiciary Committee.*fn4 Sourcebook, supra, at 655.
Representative McCloskey then submitted an amendment to the Flowers amendment, see n. supra, which read: information may be withheld when it is "specifically exempted by statute . . . provided that such statute (A) requires that the matters be withheld from the public, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld. " Sourcebook, supra, at 689. The McCloskey amendment was passed by the House; with only minor modification, the McCloskey amendment is the current exemption 3(A) and (B).*fn5
The Judiciary Committee Report makes crystal clear the Congressional intention to place § 222(f) within the ambit of exemption 3(B). Even though exemption 3(B) was subject to reworking after it left the House Judiciary Committee, we are certain that if § 222(f) were an exempting statute contemplated by the Flowers amendment, then it surely would be covered by the present exemption 3 which expanded the definition of exempting statutes. Thus, the footnote reference to § 222(f) of the Immigration and Nationality Act in the House Judiciary Committee Report certainly survived the ensuing legislative process of transforming the Committee report into law.
Plaintiffs, however, contend that the sequence of amendment by which H.R. 11656 evolved into law nullified the value of the House Judiciary Committee Report as a guide to Congressional intent. Plaintiffs point out that the words "or permitted, " which were contained in the Flowers proposal, did not survive the McCloskey amendment. Representative McCloskey eliminated these words because he felt that by adding them "the new language, in effect broadened the exemption to allow an administrator under a permissive secrecy statute to keep information secret, unless the statute laid out specific criteria. " Sourcebook, supra, at 690. Plaintiffs argue that this shows that the McCloskey amendment was designed to cut back on the Flowers amendment, which swept too far because it covered permissive as well as mandatory withholding statutes. Plaintiffs further argue that § 222(f) was one of the permissive statutes covered by the Flowers proposal which the McCloskey amendment was designed to exclude as a withholding statute.
Plaintiffs' interpretation rests upon a skewed reading of the legislative history and the statutes themselves. While the legislative history does not clarify the reason for Representative McCloskey's trouble with the words "or permitted, " we are certain that the McCloskey amendment did not eliminate all permissive statutes from the ambit of exemption 3(B). For permissive withholding statutes, establishing particular criteria for withholding or referring to particular types of information to be withheld (the same as those proposed in the Flowers amendment), would continue to qualify under the McCloskey amendment's exemption 3(B).*fn6 Indeed, in order to give effect to plaintiffs' interpretation, we would have to read exemption 3 as exclusive of any permissive withholding statute; i.e. clause (B) of exemption 3 would not apply to permissive withholding statutes, but only to mandatory withholding statutes which establish "particular criteria for withholding or refer to particular types of information to be withheld. " This, however, would render clause (B) a nullity, for the specific types of mandatory withholding statutes covered by clause (B) are already covered by the more general clause (A).
The only sensible reading of exemption 3, therefore, is that clause (A) refers to mandatory withholding statutes, and clause (B) refers to particular types of permissive withholding statutes, which, if they meet the criteria required by clause (B), qualify as exempting statutes under FOIA. See Founding Church of Scientology of Washington, D.C., Inc. v. National Security Agency, 197 U.S. App. D.C. 305, 610 F.2d 824, 827 (D.C. Cir. 1979); American Jewish Cong., supra, at 628 ("Subsection (B) does leave room for administrative discretion in two carefully defined situations . . . ."). Plaintiffs' interpretation also is inconsistent with several opinions holding statutes providing some administrative discretion to be qualified under exemption 3(B). See, e.g., Irons & Sears v. Dann, supra.
The Flowers amendment would have required both mandatory and permissive withholding statutes to establish particular criteria or refer to particular types of information in order to qualify as an exempting statute. The effect of the McCloskey amendment was to permit withholding of agency records under a mandatory withholding statute as long as the federal agency had no discretion on the issue. Only permissive withholding statutes were required to establish particular criteria for withholding or refer to particular types of information to be withheld in order to qualify as an exempting statute. In Representative McCloskey's words:
What I have done, essentially, in this amendment is to merely divide the two situations. If a statute, such as the Census Act, requires the Census Administrator to keep all information secret, it will not be subject to disclosure. On the other hand, if the statute merely permits the FAA Administrator to exercise discretion as to whether or not information shall be made public, without specific criteria, as to how he shall exercise that discretion, it must be released unless the Freedom of Information Act provisions permit it to be withheld.
Sourcebook, supra, at 690 (emphasis supplied). See also id. [at] 690 (comments of Rep. McCloskey); 691 (comments of Rep. Fascell ; 693-95 (comments of Rep. McCloskey).
The judgment of the district court will be affirmed.
The judgment of the district court will be affirmed.