Opinions & Commentaries

The Freedom of Information Act of 1966, 5 U. S. C. § 552, provides that Government agencies shall make available to the public a broad spectrum of information, but exempts from its mandate certain specified categories of information, including matters that are "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," § 552 (b) (1), or are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency," § 552 (b) (5). It is the construction and scope of these exemptions that are at issue here.

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Three cases, consolidated for hearing in the court below, raise the issue of the effect of the Freedom of Information Act (FOIA), 5 U. S. C. § 552, upon proceedings pending under the Renegotiation Act of 1951, c. 15, 65 Stat. 7, as amended, 50 U. S. C. App. § 1211 et seq. In particular, they concern the jurisdiction of a federal district court to enjoin the renegotiation process until an FOIA claim is resolved.

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The National Labor Relations Board (the Board) and its General Counsel seek to set aside an order of the United States District Court directing disclosure to respondent, Sears, Roebuck & Co. (Sears), pursuant to *136 the Freedom of Information Act, 5 U. S. C. § 552 (Act), of certain memoranda, known as "Advice Memoranda" and "Appeals Memoranda," and related documents generated by the Office of the General Counsel in the course of deciding whether or not to permit the filing with the Board of unfair labor practice complaints.

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The issue in this case is whether certain documents— documents generated by the Renegotiation Board (Board) and by its Regional Boards in performing their task of deciding whether certain Government contractors have earned, and must refund, "excessive profits" on their Government contracts—are "final opinions" explaining the reasons for agency decisions already made, and thus expressly subject to disclosure pursuant to the Freedom of Information Act (Act), 5 U. S. C. § 552 (a) (2) (A), or are instead predecisional consultative memoranda exempted from disclosure by § 552 (b) (5). See NLRB v. Sears, Roebuck & Co., ante, p. 132.

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We granted certiorari[1] in this case in order to determine whether Exemption 3 of the Freedom of Information Act, 5 U. S. C. § 552 (b) (3),[2] permits nondisclosure *257 to respondents of certain reports in the files of the Federal Aviation Administration. This exemption provides that material need not be disclosed if "specifically exempted from disclosure by statute." The reports are known as Systems Worthiness Analysis Program (SWAP) Reports.[3] They consist of analyses made by representatives of the FAA concerning the operation and maintenance performance of commercial airlines. Over-sight and regulation of air travel safety is the responsibility of the FAA, § 601 of the Federal Aviation Act of 1958, 72 Stat. 775, as amended, 49 U. S. C. § 1421. The FAA claims the documents are protected from disclosure *258 by virtue of § 1104 of the Federal Aviation Act of 1958, 49 U. S. C. § 1504.[4]The facts of the case, in its present posture,[5] are quite simple. During the summer of 1970, in connection with a study of airline safety being conducted by them, the respondents, associated with the Center for the Study of Responsive Law, requested that the FAA make available certain SWAP Reports. The FAA declined to produce the documents. In accordance with established procedures adopted by the FAA, the respondents then filed timely notice of administrative appeal in August 1970. Several months later, while this administrative appeal was pending, the Air Transport Association, on behalf of its airline *259 members, requested that the FAA make no public disclosure of the SWAP Reports. The Association noted that, in a prior memorandum of its own staff, the FAA had pointed out that " `[t]he SWAP Program requires a cooperative effort on both the part of the company and FAA if it is to work effectively,' " and argued that "[t]he present practice of non-public submissions, which includes even tentative findings and opinions as well as certain factual material, encourages a spirit of openness on the part of airline management which is vital to the promotion of aviation safety—the paramount consideration of airlines and government alike in this area." In February 1971, the FAA formally denied respondents' request for the SWAP Reports. It took the position that the reports are exempt from public disclosure under 5 U. S. C. § 552 (b) (3), the section at issue here. As previously noted, that section provides that such material need not be disclosed under the Freedom of Information Act when the material is specifically exempted from disclosure by statute. The FAA noted that § 1104 of the Federal Aviation Act of 1958 permits the Administrator to withhold information, public disclosure of which, in his judgment, would adversely affect the interests of the objecting party and is not required to be disclosed in the interest of the public. The FAA also based its denial of these data on the exemption for intra-agency memoranda (5 U. S. C. § 552 (b) (5)), the exemption for investigatory files compiled for law enforcement purposes (§ 552 (b) (7)), and, finally, the exemption for documentation containing trade secrets and commercial or financial information of a privileged or confidential nature (§ 552 (b) (4)). The FAA's answer also explained its view of the need for confidentiality in SWAP Reports:

"The effectiveness of the in-depth analysis that is the essence of SWAP team investigation depends, to *260 a great extent, upon the full, frank and open cooperation of the operator himself during the inspection period. His assurance by the FAA that the resulting recommendations are in the interest of safety and operational efficiency and will not be disclosed to the public are the major incentives impelling the operator to hide nothing and to grant free access to procedures, system of operation, facilities, personnel, as well as management and operational records in order to exhibit his normal course of operations to the SWAP inspectors."
Respondents then sued in the District Court, seeking, inter alia, the requested documents. The District Court held that "the documents sought by plaintiffs . . . are, as a matter of law, public and non-exempt within the meaning of 5 United States Code [§] 552, and plaintiffs are entitled to judgment . . . as a matter of law."A divided Court of Appeals affirmed the judgment of the District Court "insofar as appellants rely upon Exemption (3)," but remanded the case for consideration of other exemptions which the FAA might wish to assert. 162 U. S. App. D. C. 298, 498 F. 2d 1031 (1974). Examining first what it felt was the ordinary meaning of the language of Exemption 3, the Court of Appeals held that its language required the exempting statute relied on to specify or categorize the particular documents it authorizes to be withheld. Because § 1104 delegated "broad discretionary authority" under a "public interest" standard, it was held not within the scope of Exemption 3. The Court of Appeals distinguished this Court's decision in EPA v. Mink, 410 U. S. 73 (1973), on the ground that the exemption involved in that case was construed to be a specific reference by Congress to a definite class of documents, namely those that must be kept secret " `in the *261 interest of the national defense or foreign policy,' " 162 U. S. App. D. C., at 300, 498 F. 2d, at 1033. The Court of Appeals read the Act as providing a comprehensive guide to congressional intent. One of the Act's major purposes was seen as intending to eliminate what it characterized as vague phrases such as "in the public interest" or "for good cause" as a basis for withholding information. Under these circumstances, the court concluded that § 1104 cannot be considered a specific exemption by statute within the meaning of Exemption 3 of the Freedom of Information Act.

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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

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The question presented is whether the Freedom of Information Act (FOIA), 5 U. S. C. § 552 (1976 ed.), requires the National Labor Relations Board to disclose, prior to its hearing on an unfair labor practice complaint, statements of witnesses whom the Board intends to call at the hearing. Resolution of this question depends on whether production of the material prior to the hearing would "interfere with enforcement proceedings" within the meaning of Exemption 7 (A) of FOIA, 5 U. S. C. § 552 (b) (7) (A) (1976 ed.).

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The expanding range of federal regulatory activity and growth in the Government sector of the economy have increased federal agencies' demands for information about the activities of private individuals and corporations. These developments have paralleled a related concern about secrecy in Government and abuse of power. The Freedom of Information Act (hereinafter FOIA) was a response to this concern, but it has also had a largely unforeseen tendency to exacerbate the uneasiness of those who comply with governmental demands for information. For under the FOIA third parties have been able to obtain Government files containing information submitted by corporations and individuals who thought that the information would be held in confidence.

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The Federal Open Market Committee has a practice, authorized by regulation, 12 CFR § 271.5 (1978),[1] of withholding *343 certain monetary policy directives from the public during the month they are in effect. At the end of the month, the directives are published in full in the Federal Register. The United States Court of Appeals for the District of Columbia Circuit held that this practice violates the Freedom of Information Act, 5 U. S. C. § 552. 184 U. S. App. D. C. 203, 565 F. 2d 778 (1977). We granted certiorari on the strength of the Committee's representations that this ruling could seriously interfere with the implementation of national monetary policy. 436 U. S. 917 (1978).

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The Freedom of Information Act (FOIA) vests jurisdiction in federal district courts to enjoin an "agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U. S. C. § 552 (a) (4) (B). We hold today that even if a document requested under the FOIA is wrongfully in the possession of a party not an "agency," the agency which received the request does not "improperly withhold" those materials by its refusal to institute a retrieval action. When an agency has demonstrated that it has not "withheld" requested records in violation of the standards established by Congress, the federal courts have no authority to order the production of such records under the FOIA.

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The Freedom of Information Act, 5 U. S. C. § 552, empowers federal courts to order an "agency" to produce "agency records improperly withheld" from an individual requesting access. § 552 (a) (4) (B). We hold here that written data generated, owned, and possessed by a privately controlled organization receiving federal study grants are not "agency records" within the meaning of the Act when copies of those data have not been obtained by a federal agency subject to the FOIA. Federal participation in the generation of the data by means of a grant from the Department of Health, Education, and Welfare (HEW) does not make the private organization a federal "agency" within the terms of the Act. Nor does this federal funding in combination with a federal right of access render the data "agency records" of HEW, which is a federal "agency" under the terms of the Act.

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This case presents the issue whether information may be obtained under the Freedom of Information Act, 5 U. S. C. *377 § 552, when the agency holding the material has been enjoined from disclosing it by a federal district court.

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The question presented is whether § 6 (b) (1) of the Consumer Product Safety Act, 15 U. S. C. § 2055 (b) (1), governs the disclosure of records by the Consumer Product Safety Commission pursuant to a request under the Freedom of Information Act. We granted certiorari to review a judgment of the Court of Appeals for the Third Circuit because of the importance of the question and because of a conflict in the Circuits.[1] 444 U. S. 979.

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The Court of Appeals for the Ninth Circuit held that § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 853, 42 U. S. C. § 4332(2)(C), requires the Navy to prepare and release to the public a "Hypothetical Environmental Impact Statement" with regard to the operation *141 of a facility capable of storing nuclear weapons. Catholic Action of Hawaii/Peace Education Project v. Brown, 643 F. 2d 569, 572 (1980). Because we conclude that the "Hypothetical Environmental Impact Statement" is a creature of judicial cloth, not legislative cloth, and that it is not mandated by any of the statutory or regulatory provisions upon which the Court of Appeals relied, we reverse its decision.

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We granted certiorari to determine whether lists of addresses collected and utilized by the Bureau of the Census are exempt from disclosure, either by way of civil discovery or the Freedom of Information Act, under the confidentiality provisions of the Census Act, 13 U. S. C. §§ 8 and 9.

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In September 1979, respondent Washington Post Co. filed a request under the Freedom of Information Act (FOIA), 5 U. S. C. § 552, requesting certain documents from petitioner United States Department of State. The subject of the request was defined as "documents indicating whether Dr. Ali Behzadnia and Dr. Ibrahim Yazdi . . . hold valid U. S. passports." App. 8. The request indicated that respondent would "accept any record held by the Passport Office indicating whether either of these persons is an American citizen." Ibid. At the time of the request, both Behzadnia and Yazdi were Iranian nationals living in Iran.

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The Freedom of Information Act (FOIA), 5 U. S. C. § 552 (1976 ed. and Supp. IV), does not require the disclosure of "investigatory records compiled for law enforcement purposes" when the release of such records would interfere with effective law enforcement, impede the administration of justice, constitute an unwarranted invasion of privacy, or produce certain other specified consequences. § 552(b)(7).[1]*618 The sole question presented in this case is whether information contained in records compiled for law enforcement purposes loses that exempt status when it is incorporated into records compiled for purposes other than law enforcement.

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The Freedom of Information Act (FOIA), 5 U. S. C. § 552, mandates that the Government make its records available to the public. Section 552(b)(5) exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." It is well established that this exemption was intended to encompass the attorney work-product rule. The question presented in this case is the extent, if any, to which the work-product component of Exemption 5 applies when the litigation for which the requested documents were generated has been terminated.

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The Freedom of Information Act (FOIA), 5 U. S. C. § 552 (1982 ed.), requires federal agencies to disclose records[1] that *794 do not fall into one of nine exempt categories.[2] The question presented is whether confidential statements obtained during an Air Force investigation of an air crash are protected from disclosure by Exemption 5, which exempts "inter-agency or intra-agency memorandums or letters which would not be *795 available by law to a party other than an agency in litigation with the agency."

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469 U.S. 14 105 S.Ct. 413 83 L.Ed.2d 242 UNITED STATES DEPARTMENT OF JUSTICE et al.v.Anthony PROVENZANO. Alfred B. SHAPIRO and Gregory J. Wentz v. DRUG ENFORCEMENT ADMINISTRATION. Nos. 83-1045, 83-5878. Nov. 26, 1984. PER CURIAM. 1 These two cases, when they were filed here, presented the issue whether Exemption (j)(2) of the Privacy Act of 1974, 5 U.S.C. § 552a(j)(2), is a withholding statute within the third exemption of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(3). Because the Courts of Appeals below had decided the issue oppositely, 717 F.2d 799 (CA3), on rehearing, 722 F.2d 36 […]

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In No. 83-1075, we granted certiorari to decide whether § 102(d)(3) of the National Security Act of 1947, as incorporated in Exemption 3 of the Freedom of Information Act, exempts from disclosure only those sources of intelligence information to which the Central Intelligence Agency had to guarantee confidentiality in order to obtain the information. In No. 83-1249, the cross-petition, we granted certiorari to decide whether the Freedom of Information Act requires the Agency to disclose the institutional affiliations of persons whose identities are exempt from disclosure as "intelligence sources."

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Section 6103 of the Internal Revenue Code, 26 U. S. C. § 6103, lays down a general rule that "returns" and "return information" as defined therein shall be confidential. "Return information" is elaborately defined in § 6103(b)(2); immediately after that definition appears the following proviso, known as the Haskell Amendment:

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On the basis of information provided by local, state, and federal law enforcement agencies, the Federal Bureau of Investigation (FBI) compiles and maintains criminal identification records or "rap-sheets" on millions of persons, which contain descriptive information as well as a history of arrests, charges, convictions, and incarcerations. After the FBI denied Freedom of Information Act (FOIA) requests by respondents, a CBS news correspondent and the Reporters Committee for Freedom of the Press, they filed suit in the District Court seeking the rap-sheet for one Charles Medico insofar as it contained "matters of public record." Since the Pennsylvania Crime Commission had identified Medico's family company as a legitimate business dominated by organized crime figures, and since the company allegedly had obtained a number of defense contracts as a result of an improper arrangement with a corrupt Congressman, respondents asserted that a record of financial crimes by Medico would potentially be a matter of public interest. Petitioner Department of Justice responded that it had no record of such crimes, but refused to confirm or deny whether it had any information concerning nonfinancial crimes by Medico. The court granted summary judgment for the Department, holding, inter alia, that the rap-sheet was protected by Exemption 7(C) of the FOIA, which excludes from that statute's disclosure requirements records or information compiled for law enforcement purposes "to the extent that the production of such [materials] . . . could reasonably be expected to constitute an unwarranted invasion of" personal privacy. The Court of Appeals reversed and remanded, holding, among other things, that district courts should limit themselves in this type of case to making the factual determination whether the subject's legitimate privacy interest in his rap-sheet is outweighed by the public interest in disclosure because the original information appears on the public record.

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The question presented is whether the Freedom of Information Act (FOIA or Act), 5 U. S. C. § 552 (1982 ed. and Supp. V), requires the United States Department of Justice (Department) to make available copies of district court decisions that it receives in the course of litigating tax cases on behalf of the Federal Government. We hold that it does.

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Once again, we are faced with an issue under the Freedom of Information Act (FOIA or Act), 5 U. S. C. § 552. This time, we are concerned with the Act's Exemption 7, § 552 (b)(7). That provision exempts from disclosure

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In response to a Freedom of Information Act (FOIA) request, the Department of State produced 25 documents containing information about Haitian nationals who had attempted to immigrate illegally to the United States and were involuntarily returned to Haiti. Names of individual Haitians had been deleted from 17 of the documents. The question presented is whether these deletions were authorized by FOIA Exemption 6, which provides that FOIA disclosure requirements do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U. S. C. § 552(b)(6).

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Exemption 7(D) of the Freedom of Information Act, 5 U. S. C. § 552 (FOIA), exempts from disclosure agency records "compiled for law enforcement purposes . . . by criminal law enforcement authority in the course of a criminal investigation" if release of those records "could reasonably be expected to disclose" the identity of, or information provided by, a "confidential source." § 552(b)(7)(D). This case concerns the evidentiary showing that the Government must make to establish that a source is "confidential" within the meaning of Exemption 7(D). We are asked to decide whether the Government is entitled to a presumption that all sources supplying information to the Federal Bureau of Investigation (FBI or Bureau) in the course of a criminal investigation are confidential sources.

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This case requires us to consider whether disclosure of the home addresses of federal civil service employees by their employing agency pursuant to a request made by the employees' collective-bargaining representative under the Federal Service Labor-Management Relations Statute, 5 U. S. C. §§ 7101-7135 (1988 ed. and Supp. IV), would constitute a "clearly unwarranted invasion" of the employees' personal privacy within the meaning of the Freedom of Information Act, 5 U. S. C. § 552. Concluding that it would, we reverse the judgment of the Court of Appeals.

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519 U.S. 355117 S.Ct. 795136 L.Ed.2d 825 D. Dean BIBLES, Director, Oregon Bureau of Land Managementv.OREGON NATURAL DESERT ASSOCIATION. No. 96-713. Supreme Court of the United States Feb. 18, 1997. PER CURIAM. 1 In this case, the Court of Appeals for the Ninth Circuit held that Exemption 6 of the Freedom of Information Act (FOIA), 5 U.S.C. §552(b)(6), did not forbid disclosure of a mailing list maintained by petitioner, the Bureau of Land Management (BLM), and sought by respondent, the Oregon Natural Desert Association (ONDA). In reaching this conclusion, the Court of Appeals relied upon the “substantial public interest in […]

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Documents in issue here, passing between Indian Tribes and the Department of the Interior, addressed tribal interests subject to state and federal proceedings to determine water allocations. The question is whether the documents are exempt from the disclosure requirements of the Freedom of Information Act, as "intra-agency memorandums or *5 letters" that would normally be privileged in civil discovery. 5 U. S. C. § 552(b)(5). We hold they are not.

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This case requires us to interpret the Freedom of Information Act (FOIA), 5 U. S. C. § 552. FOIA does not apply if the requested data fall within one or more exemptions. Exemption 7(C) excuses from disclosure "records or information compiled for law enforcement purposes" if their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy." § 552(b)(7)(C).

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(Slip Opinion) OCTOBER TERM, 2009 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus DOE ET AL. v. REED, WASHINGTON SECRETARY OF STATE, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS […]

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