utional claims, and no scope of "Executive to invoke judicial power reclassified under the Order 11652. The case ning of two exemptive om of Information Act, hat the Court makes a rpose of that Act. But hat in § 552 (b) (1) has e to the Executive's use opinion of the Court he exemption, confirmed ly withholds from disired by Executive order of the national defense nce a federal court has has imposed that reunder the Act. ear test that engendered xecutive Branch of our the kind of event that possible disclosure conts of national defense. al information available cies cannot be considered by the people or evaluated by the Congress. the people and their representatives reduced of ignorance, the democratic process is par But the Court's opinion demonstrates th has conspicuously failed to attack the probl Brother DOUGLAS discusses. Instead, it ha the Freedom of Information Act an exempti vides no means to question an Executive stamp a document "secret," however cynical even corrupt that decision might have been The opinion of my Brother BRENNAN dissen makes an admirably valiant effort to deflect t this rigid exemption. His dissent focuses on t requirement that "the court shall determine de novo...." But the only "matter" to be de novo under § 552 (b) (1) is whether in fa dent has required by Executive Order that th in question are to be kept secret. Under written, that is the end of a court's inquiry As the Court points out, "Congress cou have provided that the Executive Branch ad cedures or it could have established its own I subject only to whatever limitations the Exe lege may be held to impose upon such c ordering." But in enacting § 552 (b) (1) Co] instead, to decree blind acceptance of Ex MR. JUSTICE BRENNAN, with whom MR. J SHALL joins, concurring in part and dissent The Court holds today that the Freedo mation Act, 5 U. S. C. § 552, authorizes *Similarly rigid is § 552 (b) (3), which forbids dis terials that are "specifically exempted from disclosu Here, too, the only "matter" to be determined in a de novo inquiry is the factual existence of such a sta of how unwise, self-protective, or inadvertent the en be. Opinion of BRENNAN, J. Court to make an in camera inspection of claimed to be exempt from public disclo Exemption 5 of the Act. In addition, the cludes that, as an exception to this rule, th ment may, in at least some instances, attem in camera inspection through use of detaile or oral testimony. I concur in those aspe Court's opinion. In my view, however, th dures should also govern matters for which E is claimed, and I therefore dissent from the C ing to the contrary. I find nothing whatever of the statute or in its legislative history tinguishes the two Exemptions in this respe Court suggests none. Rather, I agree with DOUGLAS that the mandate of § 552 (a) (3) shall determine the matter de novo and the b the agency to sustain its action" is the pro Congress prescribed for both Exemptions. The Court holds that Exemption 1 immu judicial scrutiny any document classified Executive Order 10501, 3 CFR 280 (Jan. 1, reaching this result, however, the Court ad struction of Exemption 1 that is flatly: with the legislative history and, indeed, the u language of the Act itself. In plain words, 1 exempts from disclosure only material "spe quired by Executive order to be kept secret in of the national defense or foreign policy." 1 Executive Order 10501 was revoked on March 8, placed with Executive Order 11652, 37 Fed. Reg. 5209, effective June 1, 1972. e 2 "The policy of the Act requires that the construed narrowly]." Soucie v. David, 145 U. S. A 157, 448 F. 2d 1067, 1080 (1971). "A broad const exemptions would be contrary to the express languag Wellford v. Hardin, 444 F. 2d 21, 25 (CA4 1971). ERM, 1972 RENNAN, J. 410 U.S. a inspection of documents m public disclosure under n addition, the Court conn to this rule, the Governe instances, attempt to avoid ugh use of detailed affidavits cur in those aspects of the view, however, those proceatters for which Exemption 1 lissent from the Court's holdnothing whatever on the face egislative history that disons in this respect, and the er, I agree with my Brother of § 552 (a)(3)-"the court e novo and the burden is on ion" is the procedure that Exemptions. mption 1 immunizes from ent classified pursuant to R 280 (Jan. 1, 1970). In the Court adopts a conhat is flatly inconsistent , indeed, the unambiguous a plain words, Exemption material "specifically rekept secret in the interest pign policy." (Emphasis d on March 8, 1972, and reFed. Reg. 5209, which became hat the... exemptions [be 1, 145 U. S. App. D. C. 144, A broad construction of the xpress language of the Act." CA4 1971). added.) Executive Order 10501, however promulgated 13 years before the passage of not require that any specific documents Rather, the Executive Order simply delega to classify to agency heads, who are empower information as Confidential, Secret, or Top S the classification decision is left to the sole these agency heads. Moreover, in exercisin tion, agency heads are not required to e document separately to determine the need but, instead, may adopt blanket classificati regard to the content of any particular docur as §§ 3 (b) and 3 (c) of the Order make c for which there is no need for secrecy "in of the national defense or foreign policy" discriminately classified in conjunction with ters for which there is a genuine need for se 3 (b) "Physically Connected Docu classification of a file or group of ph nected documents shall be at least as of the most highly classified docum Documents separated from the file or g handled in accordance with their indiv classification." 3 (c) "Multiple Classification. A doc uct, or substance shall bear a classifica as high as that of its highest classified The document, product, or substance sh one over-all classification, notwithst pages, paragraphs, sections, or compor bear different classifications." Even the petitioners concede, no doubt to the "specifically required" standard of 3 Petition for Cert. 9 n. 4. Opinion of BRENNAN, J. and the "specifically stated" requirement of that documents classified pursuant to § 3 (b) o Order 10501 cannot qualify under Exemption petitioners apparently accept the conclusion o of Appeals that as to § 3 (b): "This court sees no basis for withhold curity grounds a document that, although unclassified, is regarded secret merely be been incorporated into a secret file. To that our position in this respect is incon: the above-quoted paragraph of Section = tive Order 10501, we deem it required b and purpose of the [Freedom of Inform enacted subsequently to the Executive C U. S. App. D. C., at 236, 464 F. 2d, at 7 * Section 552 (c) provides: "This section does not authorize withholding of i limit the availability of records to the public, except stated in this section. This section is not authorit information from Congress." The accompanying Senate Report emphasizes that § a heavy burden on the Government to justify nondis "The purpose of [§ 552 (c)) is to make it clear that all materials of the Government are to be made a public by publication or otherwise unless explicitly kept secret by one of the exemptions in [§ 552 (b)]." 813, 89th Cong., 1st Sess., 10 (1965) (emphasis add A commentator cogently argues that the "pull of the wo [in § 552 (c)] is toward emphasis on [the] statutor the nine stated exemptions. The "specifically sta § 552 (c), he notes, "is often relevant in determini interpretation of particular exemptions." K. Davi tive Law § 3A.15, p. 142 (Supp. 1970). See also Da mation Act: A Preliminary Analysis, 34 U. Chi. L. R For a detailed study of the Freedom of Informati background, see Note, Comments on Proposed Amen tion 3 of the Administrative Procedure Act: The Fre mation Bill, 40 Notre Dame Law. 417 (1965). rize withholding of information or to the public, except as specifically ption is not authority to withhold ! ort emphasizes that § 552 (e) places ent to justify nondisclosure: to make it clear beyond doubt int are to be made available to the e unless explicitly allowed to be ons in [§ 552 (b)]." S. Rep. No. 5) (emphasis added). the “pull of the word 'specifically' on [the] statutory language" of "specifically stated" dause in int in determining the proper ions." K. Davis, Administra1). See also Davis, The Intor34 U. Chi. L. Rev. 761 (1967). m of Information Act and its Proposed Amendments to SecAct: The Freedom of Infor (1965). Nevertheless, petitioners maintain that classified pursuant to § 3 (c) of the Order is disclosure under Exemption 1. The Court rejected that contention, and in my view, cor Court of Appeals stated: "The same reasoning applies to this to the one dealing with physically-con ments. Secrecy by association is not the non-secret components are separab secret remainder and may be read separa distortion of meaning, they too should b 150 U. S. App. D. C., at 237, 464 F. 2 Petitioners' argument, adopted by the C this construction of the Act imputes to Co tent to authorize judges independently to Executive's decision to classify documents in of the national defense or foreign policy. T simply misconceives the holding of the Cour Information classified pursuant to §3 (c) emphasized, may receive the stamp of sec cause such secrecy is necessary to promote defense or foreign policy," but simply beca tutes a part of such other information whi merits secrecy. Thus, to rectify this situati of Appeals ordered only that the District Co determine "[i]f the non-secret components from the secret remainder and may be rea without distortion of meaning...." The c whether any components are in fact "non-s exclusively to the agency head representin tive Branch. The District Court is not a declassify or to release information that th in its sound discretion, determines must be "be kept secret in the interest of the natior |