Federal Open Market Comm. v. Merrill, 443 U.S. 340 (1979)

MR. JUSTICE STEVENS, with whom MR. JUSTICE STEWART* joins, dissenting.

The practical question in this case is whether the Federal Reserve System’s monthly changes in monetary policy should be made available immediately to the general public or should be filtered into the market through a handful of sophisticated representatives of large commercial banks and investment firms. The legal question is whether the statutory requirement that statements describing such policy changes be published "currently" means what it says.

On the practical level, it seems to me that the operation of an "open" market committee should be open to all -- not just to a selected few.{1} On the legal level, I am satisfied that the District Court and the Court of Appeals correctly read the plain language of the Freedom of Information Act.

The FOIA, 5 U.S.C. § 552(a)(1), provides that every

agency shall separately state and currently publish in the Federal Register for the guidance of the public . . . statements of general policy . . . formulated and adopted by the agency.

It is agreed that the Federal Open Market Committee is an agency within the meaning of the Act, and both the District Court and the Court of Appeals concluded that the monthly monetary policy directives are "statements of general policy." This Court does not disagree with that conclusion. It is plain, therefore, that the statute imposes a mandatory requirement of "current" publication.

In my opinion, that requirement is not satisfied by withholding publication "temporarily" -- i.e., until the policy directives become obsolete. The same principle of construction should apply to monthly policy statements as to annual policy statements. They should be made public while they are effective.

Although the Court recognizes that these policy directives may not be permanently withheld from public view without violating the Act, it nonetheless concludes that their temporary suppression is warranted by one of the statutory exemptions to the Act. I find this conclusion incomprehensible. In the first place, nothing in any of the nine exemptions to the Act has any bearing on the present situation.{2} But more fundamentally, the Court’s temporary exemption is inconsistent with the structure of the Act. Under FOIA, all information must be released, in the specified manner -- i.e., in this case, "currently" -- unless it fits into one of nine categories. As to material in those categories, the Act simply "does not apply." 5 U.S.C. § 552(b) (emphasis added). Between "current" release and total exemption, therefore, the statute establishes no middle ground. Accordingly, I cannot agree with the Court’s recognition of a third alternative for "exempt" material to which the Act nonetheless applies -- albeit on a delayed basis. If there is to be a new category subject to full disclosure but only after a "slight delay," I believe it should be created by Congress, rather than the Court.

The Court’s newly created category will impose substantial litigation costs and burdens on any requesting party seeking to overcome an agency’s objection to immediate disclosure. For, henceforth, that party must prove that compliance with the statute’s disclosure mandate would not "significantly harm the Government’s monetary functions or commercial interests." Ante at 363. The imposition of such an obstacle to prompt disclosure is inconsistent with the overriding statutory policy of giving the ordinary citizen unfettered access to information about how his Government operates.{3}

I respectfully dissent.

* MR. JUSTICE STEWART joins this dissenting opinion insofar as it expresses views concerning the "legal question" presented.

1. As Professor Milton Friedman of the University of Chicago stated:

May I say also that I have long been in favor of the immediate release of the records of policy actions of the FOMC. I have recommended repeatedly in testimony to Congress that the FOMC meetings be held on a Friday so that the record of policy actions can be written . . . and then released not later than Sunday night, so that no business days pass without this record being available.

Hearings on H.R. 9465 and 9589 before the Subcommittee on Domestic Monetary Policy of the House Committee on Banking, Finance and Urban Affairs, 95th Cong., 1st Sess., 202 (1977).

These views also reflect those of Sherman Maisel, a former member of the Federal Reserve Board, who has written in this context that "[m]ost experts on markets . . . believe that the better the information, the better the market." S. Maisel, Managing the Dollar 175 (1973).

2. The Court relies on Exemption 5, but I find its analysis unpersuasive. The Court admirably recognizes the danger of allowing every conceivable discovery privilege to be read into Exemption 5. See ante at 354-355. It proposes, therefore, that only those privileges that are recognized in the legislative history of FOIA should be incorporated in the Exemption. To the extent, however, that every reference in the subcommittee hearings to the danger of disclosing some type of governmental information suffices under this test -- virtually every agency appeared before Congress with a list of such "dangers" -- the Exemption would render the Act meaningless. On the other hand, if the Court’s test is designed to limit Exemption 5 to those references in the legislative history that clearly bear on Congress’ final understanding of the Act, I see no justification for the Court’s recognition of a vague "commercial information" component of that Exemption.

First, the passage in the House Report that the Court relies on, which refers to "information which [an agency] has received or generated before it completes the process of awarding a contract," H.R.Rep. No. 1497, 9th Cong., 2d Sess., 10 (1966), is rather clearly directed both at a different governmental activity (i.e., procurement of goods or services by the Government acting as commercial buyer) and at a different stage in the course of that activity (i.e., "before it completes [its] process") than is involved in this case. Here, the agency is engaged in a clearly governmental activity -- the regulation of financial markets -- and has already settled upon its final position and has acted upon it. Moreover, the absence in the Senate Report of even this thin reed to support the Court’s analysis is significant in light of our recognition that that Report, rather than the House Report, is the most accurate reflection of the congressional will with respect to FOIA. Department of Air Force v. Rose, 425 U.S. 352, 363-367. Finally, the fact that Congress did include a "commercial information" exemption in the Act, albeit one that clearly does not apply in this case -- Exemption 4 -- should persuasively counsel against our adopting a novel and strained interpretation of another exemption to encompass such information. This is particularly so in this case in view of the fact that the very agency involved here unsuccessfully requested that Congress amend the proposed Exemption 4 to provide protection for the policy directives involved in this case. Hearings on H.R. 5012, etc., before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 51, 55, 228, 229 (1965). Having failed to provide such protection in Exemption 4, which so clearly relates to commercial information, Congress will no doubt be surprised to find that the Court has read that protection into Exemption 5.

3. E.g., Department of Air Force v. Rose, supra at 361; EPA v. Mink, 410 U.S. 73, 79-80.