Legal Basis to Withhold Documents Relating to the Export Administration Act From the House Committee on Government Operations ( 1977 )

D ecem ber 7, 1977
77-67 MEMORANDUM OPINION FOR THE
GENERAL COUNSEL OF THE DEPARTMENT
OF COMMERCE
The Disclosure of Documents to the House
Committee on Government Operations—Boycotts—
Export Administration Act
This is in response to your request for the opinion of this Office on
the legal basis for your Department’s refusal to provide to a subcom­
mittee of the House Committee on Government Operations certain
documents relating to the antiboycott amendments to the Export A d­
ministration Act. It is our understanding that, while your Department
has provided the subcommittee with much of the information request­
ed, it felt constrained to withhold documents containing communica­
tions from foreign governments, notes of meetings with foreign govern­
ment officials, and documents from other Agencies containing com­
ments on proposed regulations implementing the Export Administration
Act. You have offered, however, to provide the subcommittee with
detailed summaries of all these documents, and, in addition, have of­
fered to allow the subcommittee chairman to inspect the original docu­
ments under certain conditions. Under these circumstances, we believe
that, upon a proper authorization by the President, the documents may
be legally withheld from the Congress.
Our conclusion is founded on the proposition, as stated in the Su­
preme Court’s opinion in United States v. Nixon, 418 U.S. 683 (1974),
that the executive branch may, as a matter o f constitutional law, decline
to reveal information in certain instances where such action is necessary
to the performance of the Executive’s constitutional responsibilities.
While the decision in Nixon was rendered in a context involving a
grand jury subpoena, as opposed to a congressional request, the Court’s
rationale indicates that it would, at least in certain situations, uphold the
Executive’s authority to decline to disclose information to Congress.
One factor the Court relied on—that of the principle of separation of
powers—is certainly applicable in cases involving congressional re­
quests; such requests, no less than a grand jury subpoena, can infringe
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on the “independence of the Executive Branch within its own sphere.”
Id., at 706. Similarly, the other factor underlying the court’s decision—
the need for confidentiality of communications between high Govern­
ment officials and their advisers—can be undermined just as much by a
congressional request as by a subpoena from the grand jury.
While the Executive’s authority to decline to disclose information to
Congress has not been a subject of extensive litigation, the cases decid­
ed thus far are in accord with our construction of Nixon. In Senate
Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d
725, 731 (D.C. Cir. 1974), the court o f appeals held that a generalized
claim of confidentiality operated to preclude the need to respond to a
congressional subpoena, at least in the absence of a showing that the
subpoenaed evidence was “ demonstrably critical to the responsible ful­
fillment of the Committee’s functions.” The A.T. & T. case [United
States v. American Telephone & Telegraph Company, 419 F. Supp. 454(D.D.C. 1976), remanded fo r further efforts at settlement, 551 F. 2d 384(D.C. Cir. 1976), remanded fo r further efforts at accommodation, No. 76-
1712 (D.C. Cir. 1977)], further supports this proposition. While the
court o f appeals has not reached a final decision in favor of either the
Executive or Congress, its opinion leaves no doubt that congressional
subpoenas do not peremptorily override the Executive’s duty to main­
tain the confidentiality of information the disclosure of which would be
damaging to the national interest.
O f course, the fact that the Executive may at times refuse to disclose
information to the congress does not necessarily mean that it may do so
in this instance. Rather, th e justification for withholding information
here must depend on whether the particular information at issue is
subject to legitimate claims of confidentiality. Another factor that the
courts might consider relevant is whether Congress’ need for the infor­
mation might be satisfied by means other than compliance with its
initial request. W e believe that both these conditions are met here.
There seems little doubt that the information requested by the sub­
committee is the sort generally subject to legitimate claims of confiden­
tiality by the executive branch. The subcommittee, first, has requested
communications from foreign governments and notes of meetings with
representatives of foreign governments. It is our understanding that the
statements made by the foreign governments were given under a pledge
o f confidentiality, either explicit or implicit. W e also understand that
some of the statements, if associated with the particular government
making them, could be damaging to that government. The disclosure of
these documents by our Government could thus impair our relations
with the foreign governments involved, both by breaching a pledge of
confidentiality and by releasing information possibly detrimental to the
interests of the other governments. The documents accordingly could
be properly termed “state secrets,” Le., “matters the disclosure of
which would endanger the nation’s governmental requirements or its
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relations o f friendship and profit with other nations. ” 8 Wigmore on
Evidence, § 2212a (McNaughton revision 1961) [emphasis added].
As such, the documents here are of the sort the Executive may
protect from disclosure. The courts have long recognized the authority
of the executive branch to protect “diplomatic secrets.” See, United
States v. Nixon, supra, at 706, 710; United States v. Curtiss-Wright
Export Corp., 299 U.S. 304, 319-21 (1936); Republic o f China v. National
Union Fire Insurance Company, 142 F. Supp. 551 (D. Md. 1956). Mr.
Justice Stewart, in commenting on this matter in his concurrence in
New York Times Co. v. United States, 403 U.S. 713, 727, 728 (1971),
stated:
. . . [I]t is elementary that the successful conduct of internation­
al diplomacy and the maintenance of an effective national defense
require both confidentiality and secrecy. Other nations can hardly
deal with this Nation in an atmosphere of mutual trust unless they
can be assured that their confidences will be kept.
Furthermore, the courts have recognized that the need for confidential­
ity may even require the withholding of information from Congress. In
commenting on President Washington’s refusal to comply with a con­
gressional request for documents relating to negotiations with foreign
countries,1 the Supreme Court stated that it was “a refusal the wisdom
of which was recognized by the House itself and has never since been
doubted.” United States v. Curtiss-Wright Export Corp., supra, at 320.
The same result is also supported by the A. T. & T. case, which involves
the Executive’s efforts to withhold from Congress another form of
“state secret.”
The other documents in question are interagency communications
from the Departments of State and Treasury to the Department o f
Commerce. We believe that the executive branch can also legitimately
refuse to provide these documents to the Congress. The Supreme Court
in Nixon recognized that there was a “valid need for protection of
communications between high Government officials and those who
advise and assist them.” 418 U.S., at 705. The court in Senate Select
Committee on Presidential Campaign Activities v. Nixon, supra, made
clear that this need for confidentiality might be asserted and upheld vis-
a-vis the Congress. While both of these decisions were rendered in the
context of Presidential communications, in our opinion, the same princi­
ple would apply with respect to communications containing the policy
deliberations of executive officials at a level below that of the Presi­
dent. The need to protect deliberative communications derives from the
need for candor and objectivity in the policymaking decisions of the
Government. See, United States v. Nixon, supra, at 705-6. This need
exists not only at the Presidential level, but also at other levels in the
1 The executive branch has on other occasions withheld from Congress information
similar to that requested here. See, e.g., instances cited in Kramer & Marcuse, “Executive
Privileges—A Study of the Period 1.953-1960,” 29 Geo. Wash. L. Rev. 623, 667-68, 841-
44 (1961).
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Government. In other contexts the courts have long recognized the
importance o f protecting the confidentiality of lower executive officials’
deliberative communications. See, Davis v. Braswell Motor Freight Lines,
Inc., 363 F. 2d 600, 603 (5th Cir. 1966); Kaiser Aluminum & Chemical
Corporation v. United States, 157 F. Supp., 141 Ct. Cl. 38 (Ct. Cl. 1958)
(Reed, J.), and so too has Congress. See 5 U.S.C. § 552(b)(5); H.R. Rep.
No. 1497, 89th Cong., 2d Sess., 10 (1966). We thus believe that the
constitutional principle announced in Nixon and Senate Select Commit­
tee can properly extend to lower officials’ deliberative communications
whose disclosure would harm the decisionmaking process o f the execu­
tive branch. If the President determines that disclosure would be harm­
ful to the effective functioning of the executive branch, the documents
may legitimately be withheld from the Congress.
O f course, the fact that the documents requested may legitimately be
withheld from Congress does not mean that the executive branch may
refuse completely to cooperate with Congress. The recent A.T. & T.
decision commands that w ith respect to requests for state secrets, the
Executive must cooperate with Congress in a “concerted search for
accommodation between the two branches.” Slip op., at 21; see, also slip
op., at 13. The same would appear to be true with respect to inter­
agency policy deliberations. The executive branch’s presumptive au­
thority to protect this sort o f information is a qualified one, and may be
overcom e by a showing that Congress’ needs may not be responsibly
fulfilled without disclosure. Senate Select Committee on Presidential
Campaign Activities v. Nixon, supra, at 730. While no such showing has
yet been made in this case, it would seem incumbent on the Executive,
in order to ensure that it could protect the documents themselves, that
it accommodate Congress’ needs through other means, if possible.
W e believe that the arrangements proposed by the Department of
Commerce in its November 21, 1977, reply to the subcommittee meet
the Executive’s obligations in this regard. You have advised us that
your Departm ent has offered to make available to the subcommittee
detailed summaries of all the documents, and that these summaries will
place before the subcommittee all of the substantive information it has
requested, but in such a way as not to impair our relations with foreign
governments or disrupt the decisionmaking processes of the executive
branch. In addition, you have offered to allow the subcommittee chair­
man to inspect all the original documents in order to verify the accura­
cy o f the summaries. This proposal should satisfy the subcommittee’s
needs; it will be furnished with all the substantive information it re­
quested, along with a check by the subcommittee chairman to make
sure that nothing is omitted or misrepresented in the summaries. We
w ould note that the court in the A.T. & T. case suggested a similar, and
even more limited, approach. It proposed there that the executive
branch furnish the pertinent subcommittee expurgated documents, and
that the subcommittee staff be allowed to select only 10 unedited
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memorandums for comparison with the originals.2 While this sugges­
tion, of course, was founded on the particular circumstances of that
case, it does provide guidance as to what the court believed was a
reasonable accommodation of both branches’ needs.
Finally, we recognize that Congress has recently amended § 7(C)
(§ 11360) of the Export Administration Act of 1969 to provide that
“any information obtained under this A ct . . . shall be made available
upon request to any committee or subcommittee of Congress of appro­
priate jurisdiction.” Pub. L. No. 95-52, § 113, 91 Stat. 241. We would
note, initially, that it is not entirely clear whether this provision is
intended to apply to the materials in question here. In any event, we do
not believe that this provision can override the Executive’s authority to
protect information where such is necessary to the performance of its
constitutional functions. For the reasons discussed above, we believe
that the documents at issue here may, upon the President’s authoriza­
tion, be lawfully withheld from disclosure to the Congress.
John M . H arm on
Assistant Attorney General
Office o f Legal Counsel
’ This is out o f a total of 217 documents. Another difference between the tw o proposals
is that, m A .T & T„ the court suggested a substitution procedure whereby, upon review
and approval by the district court, a particularly sensitive memorandum selected at
random might be replaced; no such condition has been imposed by the Department o f
Commerce here. One other difference is that the court in A .T