author: WILKEY, Circuit Judge:

text:
    Robert G. VAUGHN, Appellant, v. Bernard ROSEN, Executive Director, United States Civil Service Commission, et al.
    No. 73-1039.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 7, 1973.
    Decided Aug. 20, 1973.
    Rehearing Denied Oct. 18,1973.
    Ronald L. Plesser, Washington, D. C., with whom Alan B. Morrison, Washington, D. C., was on the brief, for appellant.
    John C. Lenahan, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Derek I. Meier, Asst. U. S. Attys., were on the brief, for appellees.
    Before ROBINSON and WILKEY, Circuit Judges, and FRANK A. KAUFMAN, District Judge for the District of Maryland.

       Sitting by designation pursuant to 28 U.S.C. § 292(c).

   WILKEY, Circuit Judge:

Appellant sought disclosure under the Freedom of Information Act of various government documents, purportedly evaluations of certain agencies’ personnel management programs. The District Court denied disclosure, presumably on the ground the documents fell within one or more exemptions to the FOIA. The scant record makes it impossible to determine if the information sought by appellant is indeed exempt from disclosure; we must remand the case to the trial court for further proceedings.

I. Facts

Overall responsibility to evaluate, oversee, and regulate the personnel management activities of the various federal agencies rests with the Civil Service Commission. The Bureau of Personnel Management, the arm of the Civil Service Commission for this task, works with the agencies in evaluating their personnel management programs. After each evaluation is complete, the Bureau issues a report entitled Evaluation of Personnel Management. These evaluations assess the personnel policies of a particular agency and set forth recommendations and policies customarily adopted by both agencies and Commission. Appellant, a law professor doing research into the Civil Service Commission, sought disclosure of these evaluations and certain other special reports of the Bureau of Personnel Management.

The Director of the Bureau of Personnel Management Evaluation declined to release the documents sought. This refusal to disclose was sustained by the Executive Director of the Civil Service Commission, who asserted that the information was exempt from disclosure because it (1) related solely to the internal rules and practices of an agency; (2) constituted inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency; and (3) was composed of personal and medical files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

After this refusal appellant filed this action in the District Court, seeking in-junctive relief and an order requiring disclosure of the requested materials in accordance with 5 U.S.C. § 552(a)(3) (1970). The Government filed a motion to dismiss, or in the alternative for summary judgment, in which it was contended that the reports fell within the three exemptions given above.

Aside from legal arguments, the sole support, regarding the contents of the documents and their exemption, of the Government’s motion was an affidavit of the Director of the Bureau of Personnel Management Evaluation. This affidavit did not illuminate or reveal the contents of the information sought, but rather set forth in conclusory terms the Director’s opinion that the evaluations were not subject to disclosure under the FOIA. On the basis of this affidavit, the trial court granted the Government’s motion for summary judgment. This appeal followed.

II. Problems of Procedure and Proof under the Freedom of Information Act

The Freedom of Information Act was conceived in an effort to permit access by the citizenry to most forms of government records. In essence, the Act provides that all documents are available to the public unless specifically exempted by the Act itself. This court has repeatedly stated that these exemptions from disclosure must be construed narrowly, in such a way as to provide the maximum access consonant with the overall purpose of the Act. By like token and specific provision of the Act, when the Government declines to disclose a document the burden is upon the agency to prove de novo in trial court that the information sought fits under one of the exemptions to the FOIA. Thus the statute and the judicial interpretations recognize and place great emphasis upon the importance of disclosure.

In light of this overwhelming emphasis upon disclosure, it is anomalous but obviously inevitable that the party with the greatest interest in obtaining disclosure is at a loss to argue with desirable legal precision for the revelation of the concealed information. Obviously the party seeking disclosure cannot know the precise contents of the documents sought; secret information is, by definition, unknown to the party seeking disclosure. In many, if not most, disputes under the FOIA, resolution centers around the factual nature, the statutory category, of the information sought.

In a very real sense, only one side to the controversy (the side opposing disclosure) is in a position confidently to make statements categorizing information, and this case provides a classic example of such a situation. Here the Government contends that the documents contain information of a personal nature the disclosure of which would constitute an invasion of certain individuals’ privacy. This factual characterization may or may not be accurate. It is clear, however, that appellant cannot state that, as a matter of his knowledge, this characterization is untrue. Neither can he determine if the personal items, assuming they exist, are so inextricably bound up in the bulk of the documents that they cannot be separated out. The best appellant can do is to argue that the exception is very narrow and plead that the general nature of the documents sought make it unlikely that they contain such personal information.

E.P.A. v. Mink differentiates between the action by the trial court called for when the factual nature of the disputed information is known and when it is not known. The first portion of the Supreme Court’s decision dealt with documents the factual nature of which was not disputed; all parties agreed that the documents had been classified as “secret” by the President. The first exemption under the FOIA provides that documents which are “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy,” are exempt from disclosure. Since the factual nature of the documents was undisputed and since under this undisputed description of the documents they clearly fit within the exemption, the Court held that no further inquiry or argument was permitted; they need not be revealed.

A second group of documents considered by the Court in Mink had not been classified “secret.” They were claimed to be exempt as “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.” There was, however, a factual dispute regarding whether the documents actually fit this description. The Court concluded that, while material dealing with facts contained in such memoranda could be disclosed, memoran-da dealing with law or policy were exempt. There was a still further factual dispute regarding how much of the material was factual, how much law or policy, and how much a combination of the two. With regard to this material which did not fit squarely within the language of the exemption, the Court remanded to the trial court to make a determination regarding the actual composition of the material.

The disputed information in this case is analogous to the second group of documents considered in Mink, in that on the record facts they do not indisputably fit within one of the exemptions to the FOIA. If the factual nature of the documents were so clearly established on the record, then the court would inquire no further and would make the legal ruling as to whether they fit within the defined exemption or exemptions. In this situation, in which there is a dispute regarding the nature of the information, the Supreme Court in Mink provided the outline of how trial courts should approach the job of making this factual determination. Our discussion here is intended to be an elaboration of this outline.

This lack of knowledge by the party seeing disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution. Ordinarily, the facts relevant to a dispute are more or less equally available to adverse parties. In a case arising under the FOIA this is not true, as we have noted, and hence the typical process of dispute resolution is impossible. In an effort to compensate, the trial court, as the trier of fact, may and often does examine the document in camera to determine whether the Government has properly characterized the information as exempt. Such an examination, however, may be very burdensome, and is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure. In theory, it is possible that a trial court could examine a document in sufficient depth to test the accuracy of a government characterization, particularly where the information is not extensive. But where the documents in issue constitute hundreds or even thousands of pages, it is unreasonable to expect a trial judge to do as thorough a job of illumination and characterization as would a party interested in the ease.

The problem is compounded at the appellate level. In reviewing a determination of exemption, an appellate court must consider the appropriateness of a trial court’s characterization of the factual nature of the information. Frequently trial courts’ holdings in FOIA cases are stated in very conclusory terms, saying simply that the information falls under one or another of the exemptions to the Act. An appellate court, like the trial court, is completely without the controverting illumination that would ordinarily accompany a request to review a lower court’s factual determination; it must conduct its own investigation into the document. The scope of inquiry will not have been focused by the adverse parties and, if justice is to be done, the examination must be relatively comprehensive. Obviously an appellate court is even less suited to making this inquiry than is a trial court.

Here we are told that certain documents fall under three exemptions which permit the agencies to decline disclosure. We do not know precisely how voluminous this information is, but from the general descriptions provided it seems reasonable to conclude that the documents run to many hundreds of pages. We could test the accuracy of the trial court’s characterizations by committing sufficient resources to the project, but the cost in terms of judicial manpower would be immense.

This burden is compounded by the fact that an entire document is not exempt merely because an isolated portion need not be disclosed. Thus the agency may not sweep a document under a general allegation of exemption, even if that general allegation is correct with regard to part of the information It is quite possible that part of a document should be kept secret while part should be disclosed. When the Government makes a general allegation of exemption, the court may not know if the allegation applies to all or only a part of the information. Isolating what exemptions apply to what parts of a document makes the burden of evaluating allegations of exemption even more difficult.

Such an investment of judicial energy might be justified to determine some issues. In this area of the law, however, we do not believe it is justified or even permissible. The burden has been placed specifically by statute on the Government. Yet under existing procedures, the Government claims all it need do to fulfill its burden is to aver that the factual nature of the information is such that it falls under one of the exemptions. At this point the opposing party is comparatively helpless to controvert this characterization. If justice is to be done and the Government’s characterization adequately tested, the burden now falls on the court system to make its own investigation. This is clearly not what Congress had in mind.

In two definite ways the present method of resolving FOIA disputes actually encourages the Government to contend that large masses of information are exempt, when in fa?t part of the information should be disclosed.

First, there are no inherent incentives that would affirmatively spur government agencies to disclose information. Under current procedures government agencies lose very little by refusing to disclose documents. At most they will be put to a court test stacked in their favor, the burden of which can be easily shifted to another by simply averring that the information falls under one of several unfortunately imprecise exemptions. Conversely, there is little to be gained by making the disclosure. Indeed, from a bureaucratic standpoint, a general policy of revelation could cause positive harm, since it could bring to light information detrimental to the agency and set a precedent for future demands for disclosure.

Secondly, since the burden of determining the justifiability of a government claim of exemption currently falls on the court system there is an innate impetus that encourages agencies automatically to claim the broadest possible grounds for exemption for the greatest amount of information. Let the court decide! And the tactical ploy is, to the extent that the number of facts in dispute are increased, the efficiency of the court system involved in that dispute resolution will be decreased. If the morass of material is so great that court review becomes impossible, there is a possibility that an agency could simply point to selected, clearly exempt portions, ignore disclosable sections, and persuade the court that the entire mass is exempt. Thus, as a tactical matter, it is conceivable that an agency could gain an advantage by claiming overbroad exemptions.

The simple fact is that existing customary procedures foster inefficiency and create a situation in which the Government need only carry its burden of proof against a party that is effectively helpless and a court system that is never designed to act in an adversary capacity. It is vital that some process be formulated that will (1) assure that a party’s right to information is not submerged beneath governmental obfuscation and mischaracterization, and (2) permit the court system effectively and efficiently to evaluate the factual nature of disputed information. To possible ways of achieving this goal we now turn our attention.

III. Procedures for Testing the Classification of Claims to Exemptions.

A. Detailed Justification

The problem of assuring that allegations of exempt status are adequately justified is the most obvious and the most easily remedied flaw in current procedures. It may be corrected by assuring government agencies that courts will simply no longer accept conclusory and generalized allegations of exemptions, such as the trial court was treated to in this case, but will require a relatively detailed analysis in manageable segments. An analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information, but could ordinarily be composed without excessive reference to the actual language of the document.

B. Specificity, Separation, and Indexing

The need for adequate specificity is closely related to assuring a proper justification by the governmental agency. In a large document it is vital that the agency specify in detail which portions of the document are disclosable and which are allegedly exempt. This could be achieved by formulating a system of itemizing and indexing that would correlate statements made in the Government’s refusal justification with the actual portions of the document.

Such an indexing system would subdivide the document under consideration into manageable parts cross-referenced to the relevant portion of the Government’s justification. Opposing counsel should consult with a view toward eliminating from consideration those portions that are not controverted and narrowing the scope of the court’s inquiry. After the issues are focused, the District Judge may examine and rule on each element of the itemized list. When appealed, such an itemized ruling should be much more easily reviewed than would be the case if the government agency were permitted to make a generalized argument in favor of exemption.

The need for an itemized explanation by the Government is dramatically illustrated by this ease. The Government claims that the documents, as a whole, are exempt under three distinct exemptions. From the record, we do not and cannot know whether a particular portion is, for example, allegedly exempt because it constitutes an unwarranted invasion of a person’s privacy or because it is related solely to the internal rules and practices of an agency. While it is not impossible, it seems highly unlikely that a particular element of the information sought would be exempt under both exemptions. Even if isolated portions of the document are exempt under more than one exemption, it is preposterous to contend that all of the information is equally exempt under all of the alleged exemptions. It seems probable that some portions may fit under one exemption, while other segments fall under another, while still other segments are not exempt at all and should be disclosed. The itemization and indexing that we herein require should reflect this.

C. Adequate Adversary Testing

Given more adequate, or rather less conclusory, justification in the Government’s legal claims, and more specificity by separating and indexing the assertedly exempt documents themselves, a more adequate adversary testing will be produced. Respect for the enormous document-generating capacity of government agencies compels us to recognize that the raw material of an FOIA lawsuit may still be extremely burdensome to a trial court. In such cases, it is within the discretion of a trial court to designate a special master to examine documents and evaluate an agency’s contention of exemption. This special master would not act as an advocate; he would, however, assist the adversary process by assuming much of the burden of examining and evaluating voluminous documents that currently falls on the trial judge.

IV. Conclusion

Upon remand the Government should undertake to justify in much less conclu-sory terms its assertion of exemption and to index the information in a manner consistent with Part III above. The trial judge may, if he deems it appropriate, appoint a special master to undertake an evaluation of the information.

The procedural requirements we have spelled out herein may impose a substantial burden on an agency seeking to avoid disclosure. Yet the current approach places the burden on the party seeking disclosure, in clear contravention of the statutory mandate. Our decision here may sharply stimulate what must be, in the final analysis, the simplest and most effective solution — for agencies voluntarily to disclose as much information as possible and to create internal procedures that will assure that disclosable information can be easily separated from that which is exempt. A sincere policy of maximum disclosure would truncate many of the disputes that are considered by this court. And if the remaining burden is mostly thrust on the Government, administrative ingenuity will be devoted to lightening the load.

For the reasons given, the case is remanded for further proceedings consistent with this opinion.

So ordered.

      . “5 U.S.O. § 552. Public information; agency rules, opinions, orders, records, and proceedings

      “(a) Each agency shall make available to the public information as follows :
      “(1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—
      “(A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submit-tals or requests, or obtain decisions ;
      “(B) statements of the general course and methods by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
      “(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
      “(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
      “(E) each amendment, revision, or repeal of the foregoing.
      Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published' in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register.
      “(2) Each agency, in accordance with published rules, shall make available for public inspection and copying—
      “(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
      “(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and
      “(C) administrative staff manuals and instructions to staff that affect a member of the public;
      unless the materials are promptly published and copies offered for sale. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction. However, in each case the justification for the deletion shall be explained fully in writing. Each agency also shall maintain and make available for public inspection and copying a current index providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if—
      “(i) it has been indexed and either made available or published as provided by this paragraph; or
      “(ii) the party has actual and timely notice of the terms thereof.
      “(3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, on request for identifable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person. On complaint, the district court of the United States in the district in which the complainant resides, or bas his principal place of business, or in which the agency records are situated, has jurisdiction to enjoin the agency from withholding agency records and to order the .production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo and the burden is on the agency to sustain its action. In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member. Except as to causes the court considers of greater importance, proceedings before the district court, as authorized by this paragraph, take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date and expedited in every way.
      “(4) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.

        “(b) This section does not apply to matters that are—
      “(1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy;
      “(2) related solely to the internal personnel rules and practices of an agency;
      “(3) specifically exempted from disclosure by statute;
      “(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
      “(5) 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;
      “(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
      “(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency;
      “(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
      “(9) geological and geophysical information and data, including maps, concerning wells.
      “(c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.”

      . The trial court below granted appellee’s motion for summary judgment without giving any reasons for its action. We do not, therefore, know why the District Court found the documents to be exempt from disclosure.

      . See Exec.Order 9830 (24 Feb. 1947).

      . The documents under discussion are not a part of the record on appeal; the court does not, therefore, know precisely what is contained in the evaluations. Both parties, however, seem to agree that the general nature of the documents is as we have described them in the text. We may, therefore, accept this description for purposes of our discussion.

      . The documents other than the evaluations were described as “special studies of the Commission for fiscal years 1969-72.” The exact nature of these “special studies” does not appear from the record, but it appears that they deal with the same general issues as do the evaluations.

      . Letter of Gilbert A. Schulkind (15 June 1972) (Joint App. at 15).

      . The FOIA provides that this section does not apply to matters that are
      related solely to the internal personnel rules and practices of an agency
      5 U.S.C. § 552(b)(2) (1970).

      . The FOIA provides that
      This section does not apply to matters that are
      inter-agency and intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.
      5 U.S.O. § 552(b) (5) (1970).

      . The FOIA provides that
      This section does not apply to matters that are
      personal and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
      5 U.S.O. § 552(b) (6) (1970).

      . See footnote 1, supra.

      . “The Legislative plan creates a liberal disclosure requirement limited only by specific exemptions, which are to be narrowly construed.” Getman v. N. L. R. B., 146 U. S. App.D.C. 209, 211, 450 F.2d 670, 672, stay denied, 404 U.S. 1204, 92 S.Ct. 7, 30 L.Ed. 2d 8 (1971). See also Bristol-Myers v. F. T. C., 138 U.S.App.D.C. 22, 25, 424 F.2d 935, 938, cert, denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970) ; M. A. Shapiro & Co. v. S. E. C., 339 F.Supp. 467, 469 (D.D. C.1972).

      . See 5 U.S.C. § 552(a) (3) (1970).

      . 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

      . 5 U.S.C. § 552(b) (1) (1970).

      . 5 U.S.C. § 552(b) (5) (1970).

      . In E. P. A. v. Mink, 410 U.S. 73, 92-93, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Supreme Court provided guidance for the trial court regarding when it should conduct an in camera examination. The Court made it clear that it was not always necessary for a court to conduct an in camera examination.

      . See footnotes 7-9, supra.

      . This was made clear in E. P. A. v. Mink, 410 U.S. 73, 85-94, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). See also Sterling Drug v. F. T. C., 146 U.S.App.D.C. 237, 243, 450 F.2d 698, 704 (1971).

      . It may be, of course, that the exempt and the non-exempt portions are so inextricably intertwined that it is impossible to separate them. The issue of whether they are intertwined is, itself, a matter of fact which must be determined by the trial court as the trier of fact. See E. P. A. v. Mink, 410 U. S. 73, 92, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

      . This requirement is clearly mandated by the Supreme Court’s language in Mink:

        An agency should be given the opportunity, by means of detailed, affidavits or oral testimony, to establish to the satisfaction of the District Court that the documents sought fall clearly beyond the range of material . . . [subject to disclosure].
      E. P. A. v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 839, 35 L.Ed.2d 119 (1973) (emphasis added).

      . In E. P. A. v. Mink, ibid., the Supreme Court made the following relevant comment:
      [T]he Agency may demonstrate, by surrounding circumstances, that^, particular documents are purely advisory and contain no separable, factual information. A representative document of those sought may be selected for in camera inspection. And, of course, the agency may itself disclose the factual portions of the contested documents and attempt to show, again by circumstances, that the excised portions constitute the bare bones of protected matter.
      In employing these techniques approved by the Court the agency should be careful that it does not discuss only the representative example while ignoring the bulk of the documents which may be disclosable. Such a course of action is not permissible under the Court’s language in Minh and would lead to the undesirable result of sweeping/ disclosable material under a blanket allegad tion of exemption. /

      . In our opinion in Sterling Drug, Inc. v. F. T. C., 146 U.S.App.D.C. 237, 450 F.2d 698 (1971), we remanded a FOIA case to the trial court because it was impossible to determine from the record if the trial court had considered whether all of the disputed information was exempt or whether part was exempt and part not. There we said:
      We must agree, however, that there is no indication in the opinion below that the judge considered the possibility of deleting portions of the documents. It may well be that making deletions would not change the character of these documents, since they appear to consist primarily of the thoughts and recommendations of the Commission and its staff. However, there may be appendices or statements of facts which are clearly subject to disclosure. See Soucie v. David, 145 U.S.App. D.C. 144 at 155, 448 F.2d 1067 at 1078 (1971). We must therefore remand the case so that the District Court judge can consider this possibility and state in his opinion that he has done so.
      146 U.S.App.D.C. at 243, 450 F.2d at 704. This case is similar in that we have no way of determining the scope of the trial court’s determination of exemption. From all that appears on the record, the trial judge’s determination was that he found all information exempt under all three of the alleged exemptions. This inability to determine which exemptions apply to what portions of the information gives rise to the need for an adequate indexing system such as described above.

      . In this regard, administrative agencies should consider the example set by government investigative agencies following the passage of the Jencks Act. 18 U.S.C. § 3500 (1970). Confronted with a Congressional mandate to disclose information relevant to the testimony of witnesses in criminal trials, investigative agencies adopted procedures that assured proper disclosure. Investigative reports were prepared in a form in which the portions to which defense counsel should have access were easily removed from the file and made available to the defense counsel. Other parts of the file were kept segregated and relatively few problems were encountered.


source: Caselaw Access Project

author: BAZELON, Chief Judge:

license: Public Domain

text:
    Duane S. MARUSA, Appellant, v. DISTRICT OF COLUMBIA et al.
    Nos. 72-1027, 72-1140.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 20, 1972.
    Decided Aug. 21, 1973.

      Jack H. Olender, Washington, D. C., for appellant.
    Leo N. Gorman, Asst. Corp. Counsel for the District of Columbia with whom
    C. Francis Murphy, Corp. Counsel and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellee, District of Columbia.
    Samuel Intrater, Washington, D. C., with whom Albert Brick, Washington,
    D. C., was on the brief for appellee, DeMiers.
    Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.
   BAZELON, Chief Judge:

Appellant Duane Marusa brought these actions in the District Court *to recover damages for a bullet wound he suffered, allegedly at the hand of Officer Delbert C. Clark of the Metropolitan Police Department. In his amended complaint, Marusa alleged that, on May 29, 1969, Officer Clark consumed an excessive amount of liquor in a bar on K Street, N.W., and that immediately after leaving the bar, the “grossly intoxicated” Clark shot Marusa with his service revolver.

Marusa sought to hold Officer Clark liable for the injuries he had inflicted. He sought to hold Police Chief Jerry Y. Wilson liable for negligence in hiring Officer Clark and in failing to train and supervise him adequately. He sought to hold the District of Columbia liable for negligence on the same grounds, and vicariously liable for the negligence of Chief Wilson. Marusa asserted both common law claims and statutory civil rights claims (under 42 U.S.C. § 1983) against each of these defendants. Finally, he sought damages for negligence from DeMiers Investments, Inc., the owner of the bar in which Officer Clark was drinking prior to the shooting.

Officer Clark was never served with process and is not a party to this appeal. Chief Wilson and the District of Columbia moved to dismiss the suit on the grounds that a) the complaint failed to state a claim upon which relief could be granted and b) it had been filed after the applicable statute of limitations had run. DeMiers moved to dismiss for failure to state a claim. The District Judge granted the motions to dismiss. Marusa appealed.

In reviewing such dismissals, this court must accept as true the allegations of the plaintiff's complaint. This being so, we think that under our precedents and well-established principles of tort liability Marusa’s complaint stated causes of action against Chief Wilson, the District of Columbia, and DeMiers Investments. Moreover, we think the actions were filed within the time limit set by the applicable statute. We therefore reverse and remand the cases for further proceedings.

I. The Claims Against Chief Wilson and the District

A. Cause of Action

Marusa’s action against the District Government and its officials is similar, in its essential respects, to the suit that was before us in Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971). There, as here, the plaintiff alleged that he had been the victim of unnecessary and excessive force at the hands of a District policeman; there, as here, the individual officer was never found for service of process; and there, as here, the plaintiff prosecuted his suit against the police chief and the District of Columbia under both common law and statutory theories. We held in Carter that, on both theories, the complaint stated causes of action against the District and its police officials.

Earlier this year, the Supreme Court reversed that ruling in part. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). After analyzing the purposes and scope of 42 U.S.C. § 1983, the Court concluded that the District of Columbia is not a “state or territory” within the meaning of that statute. Thus, there is no federal statutory basis for Marusa’s action.

The Court’s opinion,, however, made it clear that Carter v. Carlson was reversed only “insofar as that judgment sustained [the plaintiff’s] claims under § 1983.” Id. at 419-420, 93 S.Ct. at 604. Accordingly, our holding in Carter as to the common law cause of action — the alternative ground of Marusa’s suit — remains the law. 4Indeed, in arguing Carter to the Supreme Court, the District of Columbia appears to have conceded that our common law holding was correct:

It is true, as the circuit court of appeals recognized, that, at the time the action was filed, respondent was entitled to proceed against [the District of Columbia] in the United States District Court for the District of Columbia on a common law theory

On the basis of Carter and the line of cases upon which it relied, we hold that Marusa has stated a cause of action against the District Government and the police chief on common law grounds.

The fact that Officer Clark was out of uniform at the time of the alleged assault on Marusa does not affect our conclusion. Officer Clark’s tort was made possible only through the use of his service revolver, which he carried by authority of the city government. Policemen are, in fact, not only authorized but required to carry their service revolvers, as well as their badges and identification cards, “at all times” (except in their homes), whether in or out of uniform. Clearly, the government has a duty to minimize the risk of injury to members of the public that is presented by this policy. Thus, if the officer misuses his weapon, a judge or jury might reasonably find that misuse to have been proximately caused by the government’s negligence in hiring, training, or supervising the policeman. Whether Chief Wilson or the government was negligent here is not before us and we intimate no opinion on that issue.

We are aware that the line of precedent upon which our decision here is predicated — in., particular, Carter, Baker v. Washington, and Thomas v. Johnson — was strongly criticized in a dissenting opinion last year in Graves v. District of Columbia, 287 A.2d 524, 525 (D.C.Ct.App.1972). The majority of the District of Columbia Court of Appeals panel in Graves did not find that dissent persuasive. Nonetheless, the dissent represents the kind of thoughtful criticism that requires us to retrace the paths of our reasoning and to reassess our conclusions. Having done so, we think it would be unwise to abandon the Carter — Thomas rule.

The dissenting opinion in Graves suggests that, because the Federal Tort Claims Act preserves immunity for the federal government in the area of intentional torts, that immunity should extend to the local government as well. 287 A.2d at 526-527. As Judge McGowan noted for the court en banc in Spencer v. General Hospital, the federal act in no way controls the existence or scope of the local government’s immunity from suit. Spencer made it clear that the extension or contraction of the District’s immunity is a matter of judicial policy. In Carter v. Carlson,, we expressed our reluctance to extend that immunity to encompass intentional torts. As we indicated there, the intentional tort immunity of the FTC A has been severely criticized; no sound reasons were offered to support such immunity when the act was written, and none has been set forth in the intervening decades. The dissenting opinion in Graves offers no policy considerations to support its position in favor of such immunity.

The dissenting Graves opinion is correct when it warns that “funds to pay any judgment against the District of Columbia must in the last analysis emanate from Congress.” 287 A.2d at 527. But that fact does not seem to advance the argument. The source of funds for a particular governmental activity is not invariably determinative of whether that activity is “federal” or “local”. If this were the test, there would be nothing “local” at all about the D.C. government, because all funds for the government of this city “emanate from Congress” in one way or another. Thus the “source of funds” rationale, logically extended, would leave no room whatsoever for the operation of “local” law in our jurisdiction.

The Graves dissent suggests that Carter v. Carlson was based on the “unfounded and dangerous assumption” that the District of Columbia “will not be adversely affected by this extension of liability.” 287 A.2d at 527, 528. Carter v. Carlson did not involve that assumption. It seems obvious that any individual or institution, public or private, will be adversely affected to some degree if it is subjected to a lawsuit. Carter v. Carlson reflected “a long-standing judgment that the threat of damage suits does not significantly impede the effective operation of a police department, when the impediment is weighed against the public interest in a tort remedy for police misconduct.” In essence, Carter struck a balance. As is true of any balancing test, the opinion might be criticized if it had misweighted one side of the issue. But to suggest that Carter v. Carlson was based on absolutist assumptions is to miss the thrust of the opinion altogether.

Accordingly, we think the present case should be governed by the rules set forth in Thomas v. Johnson and Carter v. Carlson. Under those precedents, Ma-rusa can get to court against Chief Wilson and the District of Columbia on a theory of common law liability.

B. Statute of Limitations

The government defendants maintain, however, that they have a complete defense to Marusa’s suit under the Statute of Limitations. Marusa filed his complaint some two years and three months after the incident of which he complains occurred. The government argues that Marusa’s suit is essentially an action for “wounding;” since the applicable limitation period for “wounding” is one year, the government insists that the suit was properly dismissed.

The application of the “wounding” statute appears to be one of first impression — a remarkable happenstance when one considers that the statute in question can be traced back to 1623. Although the parties have presented arguments as to whether or not Officer Clark’s shooting of Marusa can be classified as “wounding”, we need not reach the issue on this appeal. Marusa’s suit against Officer Clark is not before us. Our case involves Marusa’s claim against Chief Wilson and the D.C. government; those claims are grounded in negligence. Carter v. Carlson. The limitation period for negligence actions in the District of Columbia is three years. 12 D.C.Code § 301(8). Thus Marusa’s complaint was filed within the applicable limitation period and should not have been dismissed.

II. The Complaints Against DeMiers Investments, Inc.

Marusa also sought damages from DeMiers Investments, Inc., which operated a (now defunct) “singles” establishment known as “Wayne’s Luv.” Ma-rusa alleged, in essence, that on the night of the shooting Officer Clark was served so many drinks at “Wayne’s Luv” that he became grossly intoxicated; that employees of “Wayne’s Luv” knew or should have known at the time they served Officer Clark that he was intoxicated and might pose a danger to others; and that Clark’s intoxication was proximately related to his assault on Marusa. DeMiers moved to dismiss on the ground that the law of our jurisdiction does not permit such an action against a tavern owner. The trial judge initially denied the motion to dismiss. After Marusa’s claims against the governmental defendants were dismissed, however, the parties requested a final judgment as to DeMiers as well, apparently so that Marusa’s claims could all be reviewed together on appeal. Following these requests, the trial judge granted DeMiers’ motion to dismiss.

We think the trial judge’s initial decision was correct, and that Marusa’s allegations state a cause of action against DeMiers. In so holding, we do not intimate any view as to whether or not DeMiers is in fact liable for all or part of Marusa’s injuries. We find only that the complaint encompasses a legally valid theory of liability which can properly be placed before a jury.

Under the District of Columbia Code, it is a criminal offense to serve alcoholic beverages to a person who is “intoxicated” or who “appears to be intoxicated.” 25 D.C.Code §§ 121, 132. Marusa’s complaint sets forth a prima facie case, subject, of course, to rebuttal, that DeMiers violated this statute in serving Officer Clark. It is settled law in this court that “violation of an ordinance intended to promote safety” can give rise to a negligence action. See Whetzel v. Jess Fisher Management Co., 108 U.S. App.D.C. 385, 389, 282 F.2d 943, 947 (1960). Although we have generally rejected the view that violation of a statute constitutes negligence per se, we have frequently held that such violation is sufficient evidence of negligence to permit a suit. We think it clear that this principle applies in this case.

Whetzel provides the guidelines for determining whether violation of a criminal statute can create civil liability. Generally, the law or regulation should be one designed to promote safety; the plaintiff must be “a member of the class to be protected” by the statute; and the defendant must be a person upon whom the statute imposes specific duties.

Marusa’s case meets these criteria. It seems obvious that regulations governing the sale of liquor are intended to enhance public safety; such statutes serve “the well-being of the community” by guarding against “the dangers attending the indiscriminate sale of intoxicating liquors.” It is also obvious that the statute imposes duties upon tavern owners such as DeMiers. In light of the purpose of the statute, we think those duties are owed to the community at large — not only to patrons of the tavern-owners’ taverns, but also to third parties, such as Marusa, who might come into contact with inebriated persons. It follows that the present suit comes within the rule of Whetzel and similar cases.

We might decline to apply the Whetzel principle to the statute involved in this case if significant policy considerations militated against its application. We think, however, that important policy factors will be served by permitting this suit to go to trial. We have long recognized that the liquor regulations of the District should be given a liberal reading to effect their “remedial objects and purposes.” District of Columbia v. Gardiner, 39 App.D.C. 389, 393 (1912). The possibility of civil liability can be an effective means of enhancing the protective purposes of such legislation. Cf. Prosser, Torts 193 (1964). Moreover, permitting Marusa his day in court will assure that the moral and empirical judgments required to allocate the cost of his injury will be made by a jury. This comports with the trend of our recent tort cases, which have taken these value-charged decisions away from judges and entrusted them to the jury, a community surrogate which should more accurately reflect the views of society as a whole.

DeMiers argues, however, that we should not follow the Whetzel principle in this case. It maintains that tavern owners can only be held liable in jurisdictions where civil liability is specifically imposed by statute. DeMiers cites various authorities for its position that “the common law knows no right of action against a seller of intoxicating liquors, as such, for ‘causing’ intoxication of the person whose negligent or willful wrong has done injury.” Judges and scholars have generally been wary of this kind of generalization from the common law, and with good reason. The common law is an immense and amorphous body of doctrine. Certainly there were periods in its development when courts would have had no trouble finding a proximate relationship between the seller of alcoholic beverages and the actions of an intoxicated person. Cf. Pollock & Maitland, The History of English Law, Book II, c. 8, § 2. In the modern era, a number of recent cases in both federal and state courts have indicated, in contrast to the authorities cited by DeMiers, that common law liability can extend to the tavern owner — particularly when he has violated applicable liquor regulations. Whether or not this is the majority view, it is clearly in ascendancy. Thus we cannot accept DeMiers’ contention that permitting the cause of action here would depart sharply from common law principles.

It is true that most of the cases finding tavern owners liable for the actions of their patrons involved automobile accidents; in those cases, the plaintiff’s injury resulted from the patron’s drunken driving, and not from drunken shooting as is alleged here. That distinction does not affect our holding, which is based on DeMiers’ violation of statutory duty. If the automobile/gun distinction is relevant at all, it goes to the jury question of the foreseeability of Maru-sa’s injury.

From the facts alleged in Marusa’s complaint, it appears that DeMiers violated a statutory duty owed to Marusa. That allegation is adequate at law to warrant a trial on the merits of Maru-sa’s action against DeMiers.

III. Conclusion

For the reasons stated above, the dismissals as to the District of Columbia, Chief Jerry V. Wilson, and DeMiers Investments, Inc. are reversed and the cases remanded for further proceedings consistent with this opinion.

      . Under D.C.Code § 11-501(4), the District Court for the District of Columbia had exclusive jurisdiction over these actions. Thus, we remain responsible for deciding the issues of “local” law that this case raises on the basis of the applicable precedents and with due reference to decisions of the District of Columbia Court of Appeals.

      . E.g., Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 172, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967) ; 2A Moore, Federal Practice § 12.08 (1968) .

      . We note that one aspect of our holding in Carter — that the District is liable to respond in damages, under the theory of re-spondeat superior, for the intentional torts of its police officers acting within the scope of their employment — has recently been accepted by a panel of the District of Columbia Court of Appeals. Graves v. District of Columbia, 287 A.2d 524 (1972). For a discussion of the dissent in that case, see text at notes 11-14 infra.

        . Petitioner’s Brief for Certiorari at 6, District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).

      . In particular, Baker v. Washington, 145 U.S.App.D.C. 277, 448 F.2d 1200 (1971) ; Thomas v. Johnson, 295 F.Supp. 1025 (D. D.C.1968).

      . Id.; Graham v. District of Columbia, 139 U.S.App.D.C. 378, 433 F.2d 536 (1971).

      . Metropolitan Police Department Manual, § 2.3:1 (1972). When out of uniform, policemen may carry their service revolvers in a concealed manner. Id. § 2.3:2. Without such authorization, carrying a concealed weapon would be unlawful. 22 D.C.Code § 3204. The reason for this policy is that a D.C. policeman is always on duty, in the sense that he has the authority and responsibility to take “proper police action in any matter coming to [his] attention requiring such action.” Manual, supra, § 2.1:4.

      . The court is not faced with the question of what liability the city might have for an off-duty policeman’s tortious conduct, not involving the use of his service revolver.

      . 145 U.S.App.D.C. 277, 448 F.2d 1200 (1971).

      . 295 F.Supp. 1025 (D.D.C.1968).

      . 138 U.S.App.D.C. 48, 425 F.2d 479 (1969).

      . 144 U.S.App.D.C. at 396, 447 F.2d at 366.

      . So concluded Prof. Davis in 1970, when the statute was 24 years old. K. Davis, Administrative Law Treatise, 1970 Supp. § 25.-08.

      . 144 U.S.App.D.C. at 393 n. 9, 447 F.2d at 363 n. 9.

      . The current provision, codified at 12 D.C. Code | 301(4), provides a one-year limitation for complaints alleging “libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest, or false imprisonment.” This section was adopted from a 1715 Maryland colonial statute (see 1 Kitty, Laws of Md. 111 (1799) ) which was substantially identical to the early English statute codified at 39 Elz. II Cha. II, Jacobi C. 16 (1623).

      . The complaints contain no allegation that Chief Wilson or the District is liable under respondeat superior for the tort of Officer Clark.

      . Quoting Ross v. Hartman, 78 U.S.App.D. C. 217, 218, 139 F.2d 14, 15, 158 A.L.R. 1370 (1943) ; Richardson v. Gregory, 108 U.S.App.D.C. 263, 281 F.2d 626 (1960) ; Danzansky v. Zimbolist, 70 App.D.C. 234, 105 F.2d 457 (1939).

      . United States ex rel. Stevens v. Richards, 33 App.D.C. 410, 417 (1904). The Stevens case dealt with the regulations established in the Act of March 3, 1893, as amended. The statute in the present case is the post-Prohibition reenactment of those regulations. See 25 D.C.Code § 101.

      . District of Columbia v. Gardiner, 39 App. D. C. 389 (1912).

      . This is a fairly standard construction of liquor regulations; see Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, at 631, 486 P. 2d 151, at 159 (Cal.1971) and cases cited therein.

      . Since the initial complaint, Marusa has demanded a jury trial against all defendants.

      . Smith & Smith v. Arbaugh’s, 152 U.S. App.D.C. 86, 469 F.2d 97 (1972) ; Cooper v. Goodwin, 478 P.2d 653 (D.C.Cir., 1973).

      . Such statutes, known as “Dram Shop Acts” or “Civil Damage Acts,” have been enacted in a number of states. Cf. Annot., 65 A.L.R.2d 923.

      . Quoting Joyce v. Hatfield, 197 Md. 249, 251, 78 A.2d 754, 756 (1951).

      . See, e. g., Mr. Justice Holmes’ letter to Harold Laski of Dec. 15, 1917, observing that the development of English and American Law is not susceptible to “sweeping and inadequate generalizations.” 1 Holmes-Laski Letters 119. For similar sentiments, see 2 Holmes-Laski Letters 822-23; Black & White Taxi & T. Co. v. Brown & Yellow Taxi & T. Co., 276 U.S. 518, 533, 534, 48 S. Ct. 404, 72 L.Ed. 681 (1928) (Holmes, J., dissenting).

      . Id., at 533, 534, 48 S.Ct. 404. Cf. Mont-rose, Precedent in English Law 151-57 (1968).

      . The leading cases are Waynick v. Chicago’s Last Department Store, 269 F.2d 322 (7th Cir., 1959) ; and Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959). See also Jardine v. Upper Darby Lodge No. 1973, 413 Pa. 626, 198 A.2d 550 (1964) ; Prevatt v. McClennan, 201 So.2d 780 (Fla.App., 1967) ; Deeds v. United States, 306 F.Supp. 348 (D.Mont., 1969) ; Vance v. United States, 355 F.Supp. 756 (D.Alas.1973) ; Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, at 629, 486 P.2d 151 (1971), and cases cited therein at 157.

      . Vesely v. Sager, supra, 95 Cal.Rptr. at 629, 486 P.2d at 157; Deeds v. United States, supra. Compare Annot., 130 A.L.R. 352 (1941) with Annot., 75 A.L.R.2d 833 (1960).

      . Cf. Prevatt v. McClennan, 201 So.2d 780 (Fla.App., 1967), holding a bar owner liable for injuries suffered by plaintiff, who was shot by drunken patrons of the bar.

      . Prosser, Torts 202 (1964).


author: PER CURIAM:

text:
    UNITED STATES of America, v. James F. WILLIAMS, Appellant,
    No. 23712.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 1, 1973.
    Decided Sept. 6, 1973.

      Reuben Bonnett, Silver Spring, Md. (appointed by this Court), for appellant.
    Kenneth Michael Robinson, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and Charles R. Work, Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, WILKE Y, Circuit Judge, and VAN PELT, Senior District Judge for the District of Nebraska.

       Sitting by designation pursuant to 28 U.S.C. § 294(d) (1964).

   PER CURIAM:

Appellant was convicted on June 11, 1969 of violations of 26 U.S.C. § 4704(a) and 21 U.S.C. § 174. His contention that Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), imposes a constitutional bar to criminal conviction of an addict for possession of narcotics for his own use is foreclosed by this Court’s decision in United States v. Moore, 158 U.S.App.D. C. —, 486 F.2d 1139 (1973).

On October 24, 1969 appellant was sentenced to five years on count one (§ 4704(a)) and ten years on count two (§ 174), the mandatory minimum. The sentences were to run concurrently. At the sentencing proceeding the trial judge indicated his belief that Appellant was likely to be benefited by treatment. Sentencing Transcript at 4-6. The judge, however, did not commit appellant under the Narcotic Addict Rehabilitation Act of 1966 (NARA), apparently because he felt bound by the contrary recommendation made by the pertinent institution following an examination under 18 U.S.C. § 4252. Sentencing Transcript at 4-5. But 18 U.S.C. § 4253(a) makes NARA commitment mandatory after a finding by the sentencing judge that treatment will be beneficial:

Following the examination provided for in section 4252, if the court determines that an eligible offender is an addict and is likely to be rehabilitated through treatment, it shall commit him to the custody of the Attorney General for treatment under this chapter, except that no offender shall be committed under this chapter if the Attorney General certifies that adequate facilities or personnel for treatment are unavailable. . . . 18 U. S.C. § 4253(a) (emphasis added).

Thus the trial judge was not bound by the recommendation he had received. There should be resentencing in light of this holding.

The convictions are affirmed. The sentences are vacated and remanded for further proceedings not inconsistent with this order.

So ordered.

      . Other issues relating to similar recommendations under the Youth Corrections Act are being considered by this court in United States v. Tillman, Slip Opinion No. 71-1352 (June 6, 1973) (petition for rehearing en hanc granted August 10, 1973).


author: TAMM, Circuit Judge:

text:
    The PLASTIC CONTACT LENS COMPANY, Appellant, v. Robert GOTTSCHALK, Commissioner of Patents.
    No. 72-1141.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 24, 1973.
    Decided Sept. 17, 1973.
    John L. Sígalos, New York City, W. Melville Van Sciver, Chicago, 111., for appellant.
    Fred W. Sherling, Associate Sol., U.S. Patent Office, with whom S. William Cochran, Sol., U.S. Patent Office, was on the brief for appellee.
    Louis Robertson, New York City, filed a brief, Pro Bono Publico as amicus curiae.
    Before MeGOWAN, TAMM and WILKEY, Circuit Judges.
   TAMM, Circuit Judge:

This is an appeal from the judgment of the United States District Court for the District of Columbia dismissing the complaint in an action to obtain a patent under 35 U.S.C. § 145 (1970). The sole ground for dismissal relied upon by the trial court is that the action is barred under the doctrine of res judicata. Plástic Contact Lens Co. v. Schuyler, 334 F.Supp. 434, 467 (D.D.C. 1971). We reverse.

This case arises from the appellant’s latest attempt to obtain a patent for a “corneal contact lens with peripheral clearance.” Appellant’s original [“parent”] application, Serial No. 701,153 (December 6, 1957), was finally rejected by the patent examiner on the ground of unpatentability over prior art. The Patent Office Board of Appeals affirmed. Appellant did not appeal the Board’s decision but filed a continuation application, Serial No. 333,531 (December 26, 1963), before the time for appeal had expired. This second application was also rejected by the examiner on the ground of prior art and for the additional reason that the Board’s ruling in the former proceeding barred the new application under the doctrine of res judica-ta. Again, the Board of Appeals affirmed. Appellant then filed a second continuation application, Serial No. 539,228 (December 29, 1965), before the time for appeal expired. No appeal was taken from the rejection of the first continuation application.

The second continuation application was finally rejected by the examiner and the Board of Appeals affirmed. 5Appel-lant then commenced this action under 35 U.S.C. § 145 (1970), seeking an adjudication that it is entitled to a patent upon the second continuation application. The Patent Office asserts three grounds for rejection which were also relied upon by both the examiner and the Board in finally rejecting appellant’s most recent application. It is argued: first, that the claims in the new application are not patentable over prior art; second, that the claims are not patentable because the matter claimed has been anticipated by a certain encyclopedia article published in 1960; third, that the doctrine of res judicata precludes issuance of a patent on the third application in light of the previous two rejections. The trial court did not reach the first two defenses because it concluded that appellant’s action was barred under the doctrine of res judicata.

The appellant raises serious questions regarding the proper function of the doctrine in patent cases. We do not have occasion to decide those questions, however, because under published procedures in effect at the time of appellant’s applications the Patent Office waived whatever right it may have had to raise the objection of res judicata.

In In re Kaghan, 387 F.2d 398, 55 CCPA 844 (1967), the Court of Customs and Patent Appeals concluded that the continuation procedure, as it then existed, estopped the Patent Office from asserting an unappealed Board of Appeals rejection of a parent application as having res judicata effect in proceedings on a duly filed continuation application. The statutory basis for the filing of a continuation application is 35 U.S. C. § 120 (1970):

An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application.

The Manual of Patent Examining Procedure, a publication of the Patent Office, contained the following provision at the time of the filing of each of appellant’s two continuation applications:

706.03 (w) Res Judicata
A prior adjudication against the inventor on the same or similar claims constitutes a proper ground of rejection as res judicata. [Citation omitted.]
The rejection should only be used when the earlier decision was a final, appellate one, such as a Board of Appeals decision where the time limit for further remedies has expired, or a decision by the Court of Customs and Patent Appeals. (Emphasis added.)

Section 706.03 (w) makes reference to M.P.E.P. § 201.07 which contained the following paragraph:

Where an application has been prosecuted to final rejection an applicant may have recourse to filing a continuation in order to introduce into the case a new set of claims and to establish a right to further examination by the Primary Examiner. (Emphasis added.)

In Kaghan the court construed these provisions as a waiver of the doctrine of res judicata where the applicant has filed a continuation application following an adverse but unappealed decision of the Board of Appeals, 387 F.2d at 401:

We interpret these passages as establishing the right of an applicant to file a continuation application following an adverse Board of Appeals decision within the time allowed for further appeal, and as establishing his right to have that application examined. A holding of res judicata without reliance on any other ground of rejection is not an examination on the merits of the application and so may not be used in such a situation. ,

While neither this court nor the district court is bound by the decisions of the Court of Customs and Patent Appeals, the decisions of that court should be given great weight and treated with respect. Kollsman v. Ladd, 226 F.Supp. 186, 188 (D.D.C. 1964); General Tire and Rubber Co. v. Watson, 184 F.Supp. 344, 350 (D.D.C. 1960). We therefore hold that the present appeal is governed by the principle of In re Kaghan, supra.7

Since the district court did not reach the other issues raised at trial, the case must be remanded for further proceedings.

Reversed and remanded.

      . 35 U.S.C. § 103 (1970).

      . Appeal No. 123-94.

      . Appeal No. 421-59.

      . Appeal No. 749-05.

      . 35 U.S.C. § 102 (1970). In this regard, the Patent Office maintains- that appellant’s application, which was filed in 1965, is not entitled to relate back to the filing date of the parent application (1957) because certain matter in the present application is not supported by the disclosures in the parent application. See 35 U.S.C. §§ 112, 120 (1970).

      . The district court applied the “patentably different” test for determining the res judi-cata effect of previous Board rulings, citing Pennington v. Commissioner of Patents, 284 F.Supp. 670 (D.D.C.1968). Although the appellant raises serious questions as to the continued validity of that formula in light of Application of Herr, 377 F.2d 610, 54 CCPA 1315 (1967), we make no intimation as to what is the proper legal test for res judicata in patent cases.

      . The court relies upon the following representation in appellant’s Reply Brief at page 7: “It should be added that the Sections of the M.P.E.P. cited by the Court of Customs and Patent Appeals in the Kaghan ease were those in force at the time all three of the applications involved in this appeal were pending before the Patent Office.”

      . The court is aware that the pertinent provisions of the Manual of Patent Examining Procedure have been revised. These revisions, of course, have no effect on the present case, since all of appellant’s filings were made prior to the revisions; nor is the court called upon to decide whether the waiver which inhered in the former provisions has been cured.


author: HAYNSWORTH, Chief Judge:

text:
    Ernest Wilmer CROSSON, III, and Marie Louise Crosson, his wife, Appellees, v. Maxwell VANCE, Appellant.
    No. 73-1222.
    United States Court of Appeals, Fourth Circuit.
    Argued June 6, 1973.
    Decided Sept. 27, 1973.
    John J. O’Connor, Jr., Baltimore, Md. (O’Connor & Preston, Baltimore, Md., on brief), for appellant.
    L. Robert Evans, Towson, Md. (Walter Litvinuck, Chester, Md., on brief), for appellees.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.
   HAYNSWORTH, Chief Judge:

After denial of a motion to dismiss for lack of jurisdiction, we allowed an interlocutory appeal to consider whether an action for personal injuries brought by a water skier against the operator of a towing motor boat was within the admiralty jurisdiction. After consideration, we find no substantial federal interest in this kind of controversy and little connection with the traditional concerns of admiralty. Since the Supreme Court has recently indicated disapproval of the exercise of jurisdiction in a similar case we reverse.

The plaintiff was skiing on Maryland navigable waters tributary to Chesapeake Bay. The defendant,' operating the towing motor boat, ran it into shoal waters in consequence of which the plaintiff was injured, or so it is alleged in the complaint.

The admiralty jurisdiction in England and in this country was born of a felt need to protect the domestic shipping industry in its competition with foreign shipping, and to provide a uniform body of law for the governance of domestic and foreign shipping, engaged in the movement of commercial vessels from state to state and to and from foreign states. The operation of small pleasure craft on inland waters which happen to be navigable has no more apparent relation to that kind of concern than the operation of the same kind of craft on artificial inland lakes which are not navigable waters.

Long ago, however, with respect to admiralty tort jurisdiction, the Supreme Court in The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125, adopted a simplistic locality test. If the tort was committed on navigable waters it was within the admiralty jurisdiction. If the injury was suffered on land, even though the offending instrument was a vessel afloat on navigable waters, the matter was beyond the jurisdiction of admiralty. The shore line was thus made the bright white jurisdictional determinant without need to reckon with other matters.

This state of affairs, with respect to damages sustained on the seaward side of the shore, was largely continued until December of last year when the Supreme Court decided Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454. In that ease, it appeared that a small jet powered airplane went down in the waters of Lake Erie after its engines had ingested some birds just after take-off and while the plane was still over the runway. Since the impact, with the ensuing damages to the plane, was in the navigable waters of Lake Erie, the plaintiff contended that there was admiralty jurisdiction within The Plymouth’s locality rule. The Supreme Court, however, modified The Plymouth’s per se rule, holding that, in addition to the locality test, there must be shown some connection “with traditional maritime activity.” The land based plane was not designed for or capable of operation on water, and the Supreme Court concluded that there was no admiralty jurisdiction of claims growing out of crashes of land based aircraft on flights between points in the continental United States, even though the crash was in navigable waters. The opinion indicates, too, that admiralty jurisdiction would not reach swimming accidents in which one swimmer is injured by another or by contact with some obstruction on the bottom.

The Supreme Court, of course, did not deal immediately with the problem which confronts us, but it did reject a simplistic locality test. The states, after all, are perfectly capable of resolving such controversies as this out of their existing bodies of laws, and are currently doing so. While federal rules of the road, requirements of lights and similar things, must be applicable to the operation of small pleasure craft in navigable waters, there is no impediment to the application of those requirements by the state courts, and we can perceive no apparent federal interest in providing a forum or a uniform hody of law for the adjudication of claims growing solely out of the operation of pleasure craft.

An exercise of the jurisdiction in a case such as this means not only a different forum and a different body of substantive law, depending solely on the locale of the accident within a given state, it perhaps also means resort to a different body of substantive law depending upon the survival of the victim. If he dies as the result of the accident on navigable waters within a state’s territory, so that the Death on the High Seas Act does not apply, admiralty must borrow the state’s wrongful death act. When that is done, it has been held that the state’s body of substantive law applicable to wrongful death claims comes with it, so that contributory negligence, an absolute defense under state law, will bar a wrongful death claim in admiralty, based upon negligence, despite the general admiralty rule of mitigation of damages. Niepert v. Cleveland Electric Illuminating Company, 6 Cir., 241 F.2d 916; Curry v. Fred Olsen Line, 9 Cir., 367 F.2d 921. See The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 30 L.Ed. 358; Pleasure-Boating and the Admiralty Jurisdiction, 10 Stan.L. Rev. 724, 735.

All of this seems to us rather senseless when any reason for federal concern for this kind of litigation is so vague and uncertain.

Our difficulty, however, stems from the fact that the Supreme Court in Executive Jet Aviation did not reach this problem. It held that, in addition to the locale test, there was no admiralty jurisdiction if there was no connection “with traditional maritime activity.” For the purposes of that case, it was not required to go further and decide whether maritime activity must be of a commercial nature, and its failure to reach out to decide the question which now confronts us must be viewed against a background of treatment of the operation of pleasure craft as a maritime activity within the admiralty jurisdiction. In Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319, the Supreme Court proceeded upon the assumption that a collision between two motor boats in the Ohio River was within the admiralty jurisdiction. It did not discuss the matter in terms of the problem presented here, but it could not have held the pleading allowable, as it did, unless there was jurisdiction in admiralty. Indeed, in Coryell v. Phipps, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363, it was held that the owner of a pleasure vessel, who, himself, was not at fault or aware of any defect in it, was entitled to a limitation of liability to the value of the vessel under the traditional admiralty rule. Again, the Supreme Court did not focus on the problem in the terms presented here, but its assumption of admiralty jurisdiction was essential to its- holding. In similar fashion, this court has decided cases arising out of small pleasure boat accidents under admiralty rules upon the assumption that admiralty jurisdiction existed. Rowe v. Brooks, 4 Cir., 329 F.2d 35.

If there were no more in Executive Jet Aviation, we could not construe its decision or the opinion as a rejection of the earlier assumptions in Levinson v. Deupree and Coryell v. Phipps. What is “traditional maritime activity,” as those words were used in the opinion in Executive Jet Aviation, is open to question in the context of the operation of small boats and injuries to water skiers. In its rejection of the strict locality test, however, the Court said:

“In cases such as these, some courts have adhered to a mechanical application of the strict locality rule and have sustained admiralty jurisdiction despite the lack of any connection between the wrong and traditional forms of maritime commerce and navigation.”

It documented that statement by citations in the footnote to a case involving an injury to a swimmer by a surfboard and to a case, King v. Testerman, E.D. Tenn., 214 F.Supp. 335, involving injuries to a water skier, a circumstance which was specifically noted. King v. Testerman is indistinguishable from this case. The plaintiff alleged that while skiing he injured his eye when thrown by rough waters encountered as a result of the negligence of the operator of the tow boat when he made radical, unsig-nalled turns. If, otherwise, there would be some doubt about the Supreme Court’s rejection of its earlier assumptions in Levinson and Coryell, it expressed explicit disapproval of the exercise of the admiralty jurisdiction in a case precisely like this, involving injuries to a water skier in which the skier charges the operator of the tow boat with negligence. It seems clear to us, therefore, that we could not uphold the exercise of the jurisdiction in this case without subjecting ourselves to the clear expression of criticism of another court for doing just that.

For our present purposes, therefore, we need not speculate whether the Supreme Court’s opinion in Executive Jet Aviation would foreclose resort to admiralty in any case involving the operation of small pleasure craft, though the Stoltz article contains impressive argument for reaching that result. We need only go as far as the Supreme Court’s explicit direction to hold that admiralty jurisdiction does not reach a claim for personal injury by a water skier against the allegedly negligent operator of the tow boat.

On the basis of the Supreme Court’s opinion in Executive Jet Aviation, we conclude that the motion to dismiss for want of jurisdiction should have been granted. The order will be reversed and the case remanded with directions to dismiss the complaint.

Reversed.

      . Navigability, of course, turns upon the condition of the waters in their natural state before the construction of the dams and not on the fact that the lakes in their present condition support large numbers of pleasure craft.

      . This holding of The Plymouth was overturned, of course, by The Admiralty Extension Act, 46 U.S.C.A. § 740.

      . 46 U.S.C.A. § 761.

      . The arguments against the existence or exercise of admiralty jurisdiction in pleasure boat accident cases are marshalled in Stolz, Pleasure Boating and Admiralty: Erie at Sea, 51 Cal.L.Rev. 661.

      . 409 U.S. 255-256, 93 S.Ct. 498.

      . See footnote 4, supra.


author: DONALD RUSSELL, Circuit Judge: WIDENER, Circuit Judge

text:
    Ernestine ROBLES et al., Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, Appellee.
    No. 72-2470.
    United States Court of Appeals, Fourth Circuit.
    Argued April 3, 1973.
    Decided Sept. 11, 1973.

      Victor H. Kramer, Washington, D. C. (Richard B. Wolf, Washington, D. C., and Joel Zeldin, on brief) for appellants.
    Andrew J. Graham, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.
    Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

This is a bizarre case, illustrative of the ignorance by even scientists of the dangerous properties of radioactive waste materials and of the hazards that may result from such ignorance. It arose out of the practice by a uranium processing plant of making available free of charge its uranium tailings for use as clean fill dirt in connection with construction of private and public structures in the community of Grand Junction, Colorado, where the uranium processing plant was located. The practice, begun in 1950, continued until 1966, when the hazards incident to the use of such tailings were belatedly recognized. In the meantime, these tailings had been extensively used. Because of the obvious dangers connected with such use, the Environmental Protection Agency (hereinafter referred to as EPA), with the assistance of the Colorado Department of Health, undertook in 1970 to monitor the radiation levels in the homes and public structures where any of these tailings had been used. In addition, the homes and business or public structures were tested for radioactive emissions. In the course of this monitoring, some 15,000 homes were surveyed. The survey was extensive. In some of the homes an air sampler was placed for a week at a time on each of six occasions in the course of a year as a part of what was described as an “(I)n-door radon daughter concentration level.” In order to secure approval for such a survey from a homeowner, the government surveyors were instructed to advise orally the homeowner or occupier that the results of the survey would not be released to any one other than the owner or occupier and federal officials working on the problem. When the surveys were completed, the results were made available by the EPA to the Colorado Department of Health, in conjunction with which the survey was made. Through an arrangement with the Colorado Department of Health, the Development Director of the community can secure and make available to any “proper party” the results of the tests made on any specific structure. In addition, each owner of a structure surveyed has been given the results of the survey of his building.

The plaintiffs at first made formal request upon the defendant for the results of the survey as it applied to all public and private structures in the community. It later modified this request to cover only those structures in which the radiation levels exceeded the Surgeon General’s “safety guidelines”. The agency responded to this request by offering to provide the results but with the names and addresses of homeowners or occupiers deleted. It based its refusal to supply any of this information upon the exemptions set forth in subdivisions (4) and (6) of Section 552(b), 5 U.S.C. This was unacceptable to the plaintiffs, who then filed this action under the Freedom of Information Act to compel disclosure. The defendant entered a motion to dismiss, and, in the alternative, a motion for summary judgment. The plaintiffs then submitted their cross-motion for summary judgment. When the motions came on for hearing, the District Court denied plaintiffs’ cross-motion and granted the defendant’s motion for summary judgment, finding that disclosure, though not exempt under subdivision (4), was exempted under subdivision (6) of the Act. The plaintiffs appeal.

On this appeal, the defendant agency apparently concedes that it is obligated to disclose to the plaintiffs, without regard to their interest or want of interest, the information requested unless disclosure is “specifically” excused under one of the nine express exemptions set forth in the Freedom of Information Act, and that, in asserting an excuse for disclosure under any express exemption, “the burden is on” it “to sustain its action.” Whether conceded or not, this is the clear purport of the Act itself. Epstein v. Resor (9th Cir. 1970) 421 F.2d 930, 933, cert, denied 398 U.S. 965, 90 S.Ct. 2176, 26 L.Ed.2d 549. While it sought to excuse nondisclosure in this case under both exemptions (4) and (6) of the Act, its claim under (4) was disallowed by the District Court and, in this Court, the agency rests its right wholly upon exemption (6). Accordingly, the sole issue here is whether the District Court was correct in finding that the defendant agency had sustained its burden of establishing a right to exemption from disclosure of the requested information under exemption (6) of the Act.

Exemption (6) is as follows:

“(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy

Obviously, the information requested was not included in any “personnel” or “medical” files as such. The basis for a claim of exemption must accordingly be found in the phrase, “similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The term “similar” was used, it seems, to indicate that, while the exemption was not limited to strictly medical or personnel files, the files covered in this third category must have the same characteristics of confidentiality that ordinarily attach to information in medical or personnel files; that is, to such extent as they contain “ ‘intimate details’ of a ‘highly personal’ nature”, they are within the umbrella of the exemption. This is the real thrust of the exemption as it was construed in Getman v. N. L. R. B. (1971), 146 U.S.App.D.C. 209, 450 F.2d 670, 675. See, Note, Invasion of Privacy and the Freedom of Information Act: Getman v. N.L.R.B., 40 Geo.Wash.L.Rev. 527, 532 (1972). It would seem to.follow that the exemption applies only to information which relates to a specific person or individual, to “intimate details” of a “highly personal nature” in that individual’s employment record or health history or the like, and has no relevancy to information that deals with physical things, such as structures as in this case. The agency contends, however, that this is too simplistic an approach to the unique situation in this case. It is true, the agency argues, that, while the information sought by the plaintiffs relates strictly to the condition of structures, of buildings, and real estate, it was gathered, analyzed, and is of interest only as it relates to the possible effect of that condition on the health and well-being of the occupants of those structures, i.e., of specific persons and individuals. So viewed, in this broad context, the information, the agency contends, comes within the definition of information of a “highly personal nature”, as contemplated in exemption (6).

It must be conceded that there is a certain persuasiveness to this argument. The survey of the homes in the community was engaged in because of concern for personal health and safety; it was not an engineering survey to determine the structural adequacy or nature of the structures. And the reason for the health concern was the possibility that continued occupancy of the building might expose the occupants and even their progeny to hazards of health and even biological impairments. It is suggested that these potential health impairments could affect adversely employment opportunities and might even reduce marriage possibilities of the occupants.

Assuming, however, that it is possible to analogize these records to health records, it does not follow automatically that such records are exempt from disclosure. The statutory exemption does not simply cover any files that may be regarded as “similar” to health files. “Similar files”, in order to qualify under the exemption, must fit the additional qualifications set forth in the exemption, i.e., they must contain information “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The use of the term “clearly” in this qualification, which was not inadvertent but purposeful on the part of Congress, was, itself, a “clear” instruction to the Courts that, in determining the issue whether a disclosure would constitute “a clearly unwarranted invasion of personal privacy”, they should “tilt the balance in favor of disclosure”. Getman v. N.L.R.B. supra, at 674 of 450 F.2d.

In resolving against disclosure, the District Court relied strongly on the fact that the agency had in some instances promised the householder that the results of the survey would be kept confidential. While, perhaps, a promise of confidentiality is a factor to be considered, it is not enough to defeat the right of disclosure that the agency “received the file under a pledge of confidentiality to the one who supplied it. Undertakings of that nature cannot, in and of themselves, override the Act.” Ackerly v. Ley (1969), 137 U.S.App.D.C. 133, 420 F.2d 1336, 1339-1340, n. 3; Legal Aid Society of Alameda County v. Shultz (D.C.Cal.1972) 349 F.Supp. 771, 776; Davis, supra, at 164. Particularly in this case is the alleged promise of confidentiality unavailing as an excuse. In the first place, the promise was given by the door-to-door surveyors only where confidentiality was specifically inquired about by a householder. The agency has offered no proof of how many householders in the community had received such promise. Even more important is the fact that the information has not been held in confidence. The results of the survey are available to- the Colorado Department of Health. This Department, seemingly with the approval of EPA, readily makes available on request the results of the survey as to any specific structure through the City Director of Development. This practice is well known to the EPA, which offers proof of the practice in support of its claim to exemption by reason of its promise of confidentiality. And it is of some significance that, so far as the record indicates, no householder has objected to this disclosure by the City Director of Development. Finally, it should be pointed out that this claim, that a promise of confidentiality supports the award of an exemption, is entirely inapplicable to public buildings.

“The ambiguous wording of exemption 6 and the traditional problems in securing the right to privacy may preclude creation of a completely satisfactory test.” 40 Geo.Wash.L.Rev. 527, at p. 540 (1972).

Another reason urged by the agency for its denial of disclosure is that the need of the public, as well as the interest of the plaintiffs, in securing the information “is negligible.” This argument misconceives the plain intent of the Act. As Professor Davis has so convincingly emphasized, the earlier provision in the Administrative Procedure Act “provided for disclosure ‘to persons properly and directly concerned.’ That was changed to ‘any person’ ”, demonstrating beyond argument that disclosure was never to “depend upon the interest or lack of interest of the party seeking disclosure.” Davis, supra, Section 3A.4 at 120 ; Bannercraft Clothing Company v. Renegotiation Board (1972) 151 U.S.App.D.C. 174, 466 F.2d 345, 352, n. 6, cert, granted 410 U.S. 907, 93 S.Ct. 967, 35 L.Ed.2d 269; Sterling Drug, Inc. v. F.T.C. (1971), 146 U.S.App. D.C. 237, 450 F.2d 698, 705; Skolnick v. Parsons (7th Cir. 1968) 397 F.2d 523, 525.

Equally .unpersuasive is the argument that disclosure should be refused because it “would do more harm than good”. Such an argument has nothing to do with “personal privacy” but is rather an argument that courts, in disposing of actions under the Act, may exercise discretion to grant or deny equity relief. While such argument has received some limited support, the better reasoned authorities find no basis for this balancing of equities in the application of the Act; indeed, the very language of the Act seems to preclude its exercise. Wellford v. Hardin (4th Cir. 1971) 444 F.2d 21, 24-25; Soucie v. David (1971) 145 U.S.App.D.C. 144, 448 F.2d 1067, 1077; Getman v. N.L.R.B., supra, at 677 of 450 F.2d; and Bannercraft Clothing Co. v. Renegotiation Board, supra, at 353 of 466 F.2d; cf., however, General Services Administration v. Benson (9th Cir. 1969) 415 F.2d 878, 880, and Davis, supra, See. 3A.6, pp. 123-4. Moreover, the claim of public harm is at best ambiguous. The only harm suggested by the agency involves the individuals whose homes were surveyed. Presumably, these individuals knew of the practice of the City Development Director of making available the information in question to any proper person requesting it. Yet no concerned individual, so far as this record shows, has ever objected; nor has the defendant agency instanced one case in which an individual householder has complained of any harm suffered by him as a result of disclosure. Nor, for that matter, has the defendant agency attempted in this case to show that any “specific governmental interests” will be harmed by the disclosure requested by the plaintiffs. Cf. Bristol-Meyers Company v. F.T.C. (1970) 138 U.S.App.D.C. 22, 424 F.2d 935, 938, cert, denied 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52.

The agency suggests that the information sought is of such a recondite scientific nature that the ordinary citizen could not properly evaluate or understand it. No one would question the ignorance of the general public — and perhaps, the scientific world, too — as to the possible harmful aspects of radioactive materials. The same could no doubt be said of much governmental information. Even census data is subject to misinterpretation and has prompted violent controversy even among experts. But the mere circumstance that information may not be fully understood is not among the “specific” exemptions authorized under the Act. Actually, it may well be that the very fact that the government so adamantly opposes release may give free rein to unbridled fear for the worst on the part of the people of this community ; whereas, the release of the surveys, even though not fully understood, may have a beneficial, calming effect on the reasonable apprehensions of these citizens.

The Government has, it developed, embarked recently since discovery of the danger on a remedial program intended to remove or minimize the hazard of radioactive injury to the occupiers of these structures. The District Court felt that such a program militated against a determination that there was any public need for or benefit to result from disclosure. In balancing equities, it thought this of moment. But, as we have already observed, the right to disclosure under the Act is not to be resolved by a balancing of equities or a weighing of need or even benefit. The only ground for denial of disclosure in this situation is that the disclosure would represent a “clearly unwarranted invasion of personal privacy.” For the reasons given, we are unable to find any reasonable basis for finding such a “clearly unwarranted basis.”

Reversed, with direction to the District Court to enter a decree granting disclosure as provided in Section 552, 5 U.S.C.

WIDENER, Circuit Judge

(concurring and dissenting):

I must respectfully dissent with respect to those who made an agreement with the government in good faith that the information disclosed about their “private homes” would be kept confidential, particularly those who are yet in possession of the premises involved. What I say does not apply to “public buildings.” The words “private homes” and “public buildings” are quoted from the complaint.

I am of opinion that the statute does not require blanket disclosure, to complete strangers, of information which the government obtained under a good faith agreement that it would not be disclosed. For persons who so agreed, I believe the files of information concerning their homes are “. . . similar files, the disclosure of which would constitute a clearly unwarranted-invasion of personal privacy.” 5 U.S.C. § 552(b) (6).

There is no question but that giving out this information promiscuously to strangers is an invasion of personal privacy. Disclosure of a specifically agreed upon confidential communication from citizen to sovereign may be considered no less. The question is whether or not it is clearly unwarranted. If the person seeking the information has any colora-ble interest in obtaining it, I think it may not be the clearly unwarranted invasion contemplated by the statute. These plaintiffs, however, insist that they need have no connection with the premises involved, no matter how remote, in order to get the information sought. Webster’s New International Dictionary, 2nd Edition, defines unwarranted as “Not warranted; being without warrant, authority, or guaranty.” Plaintiffs' right to interfere, having no interest they have chosen to disclose, is, in my opinion, clearly without warrant or authority, and ought not to be allowed.

With respect to these particular plaintiffs, in their search for information about the private homes of others, I agree with the district court when it stated: “As the House Report accompanying this legislation indicated, a citizen must be able to confide in his Government. When the Government has obligated itself in good faith not to disclose documents or information which it receives, it should be able to honor this obligation.”

      . These tailings are described as a sand-like by-product of the uranium processing plant’s mining operations.

      . 5 U.S.C., Section 552. suvra

      . Of., the language of Professor Davis in Administrative Law, 1970 Supp., Section 3A.22 at 164, where, in discussing exemption (6) and particularly the qualifying term “personal privacy”, he says :
      “I think ‘personal privacy’ always relates to individuals.”

      . One commentator has found this language unsatisfactory, adding that:

      . Cf., Wellford v. Hardin (D.C.Md.1970) 315 F.Supp. 175, 178, aff’d (4th Cir.) 444 F.2d 21.

      . In further elaboration on this point, Professor Davis, in his authoritative text, has said, at 121:
      “ * * * For instance, the sixth exemption in subsection (e) authorizes withholding of medical files if disclosure ‘would constitute a clearly unwarranted invasion of personal privacy.’ If the officer or judge finds that the disclosure will be an unwarranted invasion but is in doubt whether it is ‘clearly unwarranted,’ a natural approach to decision would be to weigh the privacy interest against the interest of the party seeking the information, so that disclosure would be made to one with a legitimate need but not to one who is malevolently motivated or an officious intermeddler. But under the Act such a balancing is inappropriate. All parties are equal in satisfying the words ‘any person.’ ”

      . Benson states the role of the court in actions under the Act as follows :
      “In exercising the equity jurisdiction conferred by the Freedom of Information Act, the court must weigh the effects of the disclosure and nondisclosure, according to the traditional equity principles, and determine the best course to follow in the given circumstances. The effect on the public is the primary consideration.” (415 F.2d at 880).