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First Amendment Library:
Barrington D. Parker Jr.


Respondents, student editors or former student editors of the New York University Law Review researching *355 disciplinary systems and procedures at the military service academies for an article for the Law Review,[1] were denied access by petitioners to case summaries of honor and ethics hearings, with personal references or other identifying information deleted, maintained in the United States Air Force Academy's Honor and Ethics Code reading files, although Academy practice is to post copies of such summaries on 40 squadron bulletin boards throughout the Academy and to distribute copies to Academy faculty and administration officials.[2] Thereupon respondents brought this action under the Freedom of Information Act, as amended, 5 U. S. C. § 552 (1970 ed. and Supp. V), in the District Court for the Southern District of New York against petitioners, the Department *356 of the Air Force and Air Force officers who supervise cadets at the United States Air Force Academy (hereinafter collectively the Agency).[3] The District Court granted petitioner Agency's motion for summary judgment *357 —without first requiring production of the case summaries for inspection—holding in an unreported opinion that case summaries even with deletions of personal references or other identifying information were "matters . . . related solely to the internal personnel rules and practices of an agency," exempted from mandatory disclosure by § 552 (b) (2) of the statute.[4] The Court of Appeals for the Second Circuit reversed, holding that § 552 (b) (2) did not exempt the case summaries from mandatory disclosure. 495 F. 2d 261 (1974). The Agency argued alternatively, however, that the case summaries constituted "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," exempted from mandatory disclosure by § 552 (b) (6). The District Court held this exemption inapplicable to the case summaries, because it concluded that disclosure of the summaries without names or other identifying information would not subject any former cadet to public identification and stigma, and the possibility of identification by another former cadet could not, in the context of the Academy's practice of distribution and official posting of the summaries, constitute an invasion of personal privacy proscribed by § 552 *358 (b) (6). Pet. for Cert. 32A. The Court of Appeals disagreed with this approach, stating that it "ignores certain practical realities" which militated against the conclusion "that the Agency's internal dissemination of the summaries lessens the concerned cadets' right to privacy, as embodied in Exemption six." 495 F. 2d, at 267. But the court refused to hold, on the one hand, either "that [the Agency] must now, without any prior inspection by a court, turn over the summaries to [respondents] with only the proper names removed . . ." or, on the other hand, "that Exemption Six covers all, or any part of, the summaries in issue." Id., at 268. Rather, the Court of Appeals held that because the Agency had not carried its burden in the District Court, imposed by the Act, of "sustain[ing] its action" by means of affidavits or testimony, further inquiry was required, and "the Agency must now produce the summaries themselves in court" for an in camera inspection