Pursuant to Circuit Rule 28(a)(1), appellants' counsel provides the following certificate as to parties, rulings and related cases.
A. Parties. Appellants are Essential Information, Inc., The Multinational Monitor, Taxpayers Asset Project, Consumer Project on Technology, The Center for the Study of Responsive Law, James Love and Manon Ress. Appellee is the United States Information Agency. There were no intervenors or amici in the district court.
B. Ruling Under Review. The ruling under review is the Memorandum Opinion and Order of the Honorable Norma Holloway Johnson, entered on November 27, 1996, set forth in the Joint Appendix at 5, and is not reported.
C. Related Cases. There are no related cases.
Colette G. Matzzie
Counsel for Appellant
FOIA: Freedom of Information Act
USIA: United States Information Agency
USIA: United States Information Service
VOA: Voice of America
This action under the Freedom of Information Act challenges the United States Information Agency's interpretation of the Smith Mundt Act, 22 U.S.C. § 1461, a statute enacted in 1948 to create the USIA and to establish the USIA's role as our government's spokesperson abroad. To ensure that the USIA's informational activities were focused abroad, and not on United States citizens who reside in the United States, the Act explicitly forbids the USIA from "disseminating" information domestically. The question raised here is how to interpret the prohibition on domestic dissemination in the Smith Mundt Act with the mandatory disclosure requirements of FOIA.
This issue arises because plaintiffs -- journalists and scholars -- seek access, under the FOIA, to the USIA's archival material, to review USIA's historical records, as well as to its Internet addresses to access current USIA materials. Adhering to the view that the Smith Mundt Act forbids the agency from permitting those within the United States to gain access to these materials because to do so would constitute "dissemination" under the Act, the USIA rejected plaintiffs' FOIA request on Exemption 3 grounds. The agency asserted that the Smith Mundt Act is an Exemption 3 statute even though it acknowledges that the same materials are made available to millions of people throughout the world and that if appellants obtain access to them, there is no prohibition of their viewing them or further disseminating them. The district court granted summary judgment to the agency.
As we explain in detail below, the judgment below should be reversed. The fundamental flaw in the USIA's position and the decision below is that the Smith Mundt Act bars disclosure of records when the USIA is asked by requesters for access to specific records under FOIA. Put simply, a bar against dissemination is not a bar against disclosure. That conclusion is supported not only by the plain English reading of the texts of the Smith Mundt Act and the FOIA, but also by construing the domestic dissemination ban within the context of the entire Smith Mundt Act and its legislative history.
The district court had jurisdiction over this Freedom of Information Act action under 5 U.S.C. § 552(a)(4)(B). The district court's final judgment granting summary judgment was entered on November 27, 1996, and appellants filed a notice of appeal on January 22, 1997. This Court has jurisdiction under 28 U.S.C. § 1291.
Did the district court err in holding that the Smith-Mundt Act is an Exemption 3 statute for purposes of the Freedom of Information Act?
Did the district court err in holding that an agency's Internet addresses are not agency records subject to disclosure under the Freedom of Information Act?
The United States Information and Educational Exchange Act of 1948 (the "Smith-Mundt" Act), 22 U.S.C. § 1461 et seq., and the relevant portions of the Freedom of Information Act, 5 U.S.C. § 552(b)(3), are set forth in the addendum to this brief.
A. The Smith Mundt Act
The USIA was founded in 1948 under the United States Information and Educational Exchange Act of 1948 (the Smith-Mundt Act) to "provide other people with a better understanding of the policies, values, institutions, and culture of the United States." 22 U.S.C. § 1431. Title V of the Smith-Mundt Act, enacted in 1948, authorizes the USIA to prepare and disseminate its program materials abroad while prohibiting the agency from disseminating these same materials domestically. The current version of 22 U.S.C. § 1461, on which the agency bases its withholding claim, provides in relevant part: "the Director is authorized . . . to provide for the preparation and dissemination abroad, of information about the United States;" "[a]ny such information . . . shall not be disseminated within the United States;" and, "on request [such information] shall be available in the English language at the Agency, at all reasonable times following its release as information abroad, for examination only by representatives of United States press associations, newspapers, magazines, radio systems, and stations, and by research studentsand scholars. . ."See footnote 1
The USIA's public information activities include the Voice of America (VOA); WORLDNET, the USIA's satellite television network; the WIRELESS FILE, a daily text-based press service, produced in five languages, linked by computerized communication systems to all overseas USIA posts; and numerous publications, in both printed and electronic form, dealing with democratic development, market economies, trade, security and other transnational issues. The USIA maintains archives, including in electronic format, of the WIRELESS FILES and Voice of America and Worldnet transcripts at its Washington, D.C. headquarters. Many of the text, video and audio materials produced by the USIA are made available on the Internet by the USIA.
The USIA contends that it is compelled to withhold its materials from domestic requestors because section 1461 of the Smith-Mundt Act specifically forbids their disclosure. The USIA takes the position that it may not permit domestic access under the FOIA to its "overseas programming materials." J.A. 37. The "overseas programming materials" consist of transcripts of Voice of America radio shows, WORLDNET television, and the WIRELESS files. And, the USIA refuses to disclose to requestors within the United States the Internet addresses that it otherwise widely disseminates throughout the world. J.A. 38. The "Internet addresses" are theURLs (or Uniform Record Locaters) at which the USIA makes available program materials on the Internet. J.A. 37, 96.
Thus, requestors within the United States are denied access to an entire set of non-classified, government-produced records stretching back nearly fifty years. These records consist of government-produced news stories, feature articles, broadcast transcripts, and miscellaneous publications, through which the USIA, serving as our official public relations agency abroad, depicts life in the United States to millions in its listening, viewing and reading audiences. Because they were government- produced and paid for with taxpayer money, they are not subject to copyright restrictions. See 17 U.S.C. § 105.
In recent years, the agency has also asserted that it may not, consistent with the anti-dissemination prohibitions of the Smith Mundt Act, provide access to its multiple Internet addresses to requestors residing in the United States. To block domestic Internet access, the USIA has split its Web server into a "domestic" and an "international" site, and limited access to information posted at USIS or overseas embassy web sites through the "domestic" site. J.A. 38, 83-85, 97. It also appears that the USIA seeks to identify whether a requester who requests information over the Internet is within the United States in an effort to bar that requestor's success. See J.A. 69-70.
At the same time that the USIA maintains that the Smith- Mundt Act forbids disclosure of records to domestic requestors, theagency recognizes that Congress has authorized it to use broadcast technologies that inevitably reach domestic audiences. See 22 U.S.C. § 1464a (authorizing use of satellite TV transmission); § 1465a (mandating radio broadcasting to Cuba from facilities in Florida); § 1465bb (mandating television broadcasting to Cuba, "notwithstanding the limitation of section 1461 . . . to the extent such dissemination is inadvertent"). Thus, Radio Marti and TV Marti, which broadcast to Cuba, can be received in parts of Southern Florida. See Rust Broadcasting v. FCC, 379 F.2d 480, 481 (D.C. Cir. 1967). VOA shortwave broadcasts can be received throughout the world, including in the United States; Worldnet television broadcasts can be received in the United States by anyone with a satellite dish. See Abbott v. Cape Canaveral, 840 F.Supp. 880, 882 (M.D.Fla. 1994), aff'd, 41 F.3d 669 (11th Cir. 1994) (table). So too the agency recognizes that its materials are widely available outside the United States and that domestic computer users with software enabling them to search the Internet can on occasion find USIA program materials intended for foreign audiences there posted. J.A. 38.
The USIA has recognized the tension between its position that the Smith Mundt Act is an Exemption 3 statute and that its materials are publicly available throughout the world and that many of its transmissions inevitably reach United States residents. The USIA's General Counsel has stated publicly that, while the Smith Mundt Act does not allow the USIA to "intentionally distributematerials within the United States for the purposes of influencing domestic opinion," the law was not intended to bar the use of communications tools with domestic "spillover." J.A. 89. Thus, the USIA explains that use of the Internet is permissible: "the intrusion upon the potential domestic audience is indirect (i.e. the Internet user must affirmatively seek out the information) and USIA has not actively encouraged domestic use of the materials." Id., while still maintaining that the Smith Mundt Act is an Exemption 3 statute that forbids FOIA access.
B. The Freedom of Information Act Request
Appellants are researchers, scholars, organizers and journalists who reside in the United States and wish to obtain access to the overseas programming materials prepared by the USIA and to the USIA's multiple Internet addresses. Before filing a formal Freedom of Information Act request for these records, appellant James Love, contacted USIA staff, including Voice of America employees, and requested the agency's Internet addresses. Appellant Love was told by USIA representatives that the information would not be provided to him because the Smith-Mundt Act forbade disclosure. J.A. 69. Mr. Love was informed that he could set up a private appointment at the USIA to inspect some archival materials but that the agency would not permit him to download materials stored in electronic format or to make verbatim copies in either electronic or paper format. Id.
By letter dated February 9, 1996, appellants submitted aformal FOIA request to the USIA for three categories of records: (1) the Wireless Files produced between July 1, 1995 and the present (including all staff-written stories, transcripts, fact sheets and documents) that are stored in electronic format; (2) all transcripts of broadcasts of the Voice of America and Worldnet Television produced from July 1, 1995 to the present and stored in electronic format, and (3) all of the World Wide Web and gopher addresses ("url identifiers") on the Internet where overseas programming materials are made available. J.A. 41-43. Appellants explained that, although they were invoking FOIA, a FOIA request should not be necessary because individuals outside the United States (and perhaps foreigners within the U.S.) could obtain the same materials through informal means, and that the preferential access granted to foreigners and those outside the United States was arbitrary and unlawful. Id. Appellants also explained that, although they agreed that the Smith Mundt Act prevents the agency from affirmatively disseminating materials within the United States or spending taxpayer money to influence domestic public opinion, the Act does not forbid the agency from disclosing records upon request whether through FOIA or over the Internet. Id.
By letter dated March 6, 1996, the USIA denied appellants' FOIA request, invoking FOIA Exemption 2 for the Internet address and Exemption 3 for the programming materials. J.A. 46-47. Plaintiffs filed an administrative appeal. J.A. 49-52. By letter dated May 2, 1996, the USIA's Access Appeal Committee upheld thedenial of plaintiffs' request, invoking Exemption 3 for all the requested records. J.A. 54-55. On May 29, 1996, appellants filed suit to challenge the denial of their request. J.A. 15.
C. Attempted Inspection of Materials at USIA
Following the filing of this action, appellant Love, accompanied by counsel, made a special appointment, pursuant to the USIA's invitation, to view the requested materials at the USIA. J.A. 70. Appellant and his counsel were met by USIA's counsel and escorted to an office in the basement of the Voice of America headquarters. Id. They were shown a computer containing Voice of America transcripts in electronic format at the desk of someone who appeared to be a systems operator. J.A. 71. The office, desk and computer terminal appeared to be an employee's personal space. Id. They were never shown a public reading room. Id. USIA staff resisted or would not answer even the most basic questions about how to operate the archival database, how many years of VOA transcripts were in the database, whether there were databases in other languages, how the database was indexed, and in what format the original materials were stored. Id. In addition, appellant Love was told by USIA's counsel that he would not be permitted to print, download or copy any of the archival database, but only to look at them on a computer screen. Id.. These conditions would have made it extremely difficult for appellants to conduct any research using these files. Id.
Appellant Love and his counsel were then escorted to acomputer that was connected to the World Wide Web. J.A. 72. Appellant Love was given a purportedly "secret" URL for the "international" USIA Web page, http://www.usia.gov/usis.html. Id.See footnote 2 This Web site was different from the "domestic" Web site that the agency routinely discloses within the United States: http://www.usia.gov.See footnote 3 Appellant Love viewed the "international web site." J.A. 38. Nonetheless, he was still unable to find USIA records that had been posted on overseas or embassy Web sites. J.A. 72. Moreover, the "WIRELESS files" that he discovered posted on various foreign sites were organized much differently than what was linked to the "international" Web site. Id. There also were additional documents on the embassy sites, which appeared not to be available in the links from the "international" site. Id. The USIA counsel was unable to explain why the information posted at the various sites was different than what appellant Love was able to obtain through the "international" site. Id. Later, appellants' expert discovered that there is no visible link from the "domestic" home page: "http://www.usia.gov" to the "international" URL (http://www.usia.gov/usia.html) that displaysthe links to the overseas missions. J.A. 83-84.
D. The District Court's Opinion
On cross-motions, the district court granted summary judgment in favor of the USIA. Before reaching the merits of the Exemption 3 issue, however, the district court decided a question that neither side had advanced. The court found that it did not have jurisdiction over the request for Internet addresses because "the Internet addresses are not agency records." J.A. 6. Even though the court recognized that computer-stored documentary records are FOIA records, it held that "an Internet address is merely a means to access agency documents stored on a computer" and not itself a record. Id.
Turning to the government's Exemption 3 claim, the district court acknowledged that the Smith-Mundt Act did not on its face forbid disclosure of agency records. Nonetheless, it relied on the statutory restriction on domestic dissemination of information prepared for dissemination abroad by the USIA to conclude that the Smith Mundt Act precluded disclosure. J.A. 8-9. In addition, the district court found certain other factors relevant to the Exemption 3 inquiry. First, it concluded that because the Smith- Mundt Act contains a statutory mechanism for examining agency records at the USIA's Washington, D.C. headquarters, Congress therefore intended to forbid disclosure of agency records under the FOIA. J.A. 9. Second, the district court noted that because Congress had not specifically directed the USIA to comply with theFOIA, it was proper to infer that Congress intended to exempt the USIA from the FOIA's coverage. Id. Finally, and in a similar vein, the district court relied upon Congress's failure to override the agency's invocation of Exemption 3 as dispositive evidence of Congress's ratification of the USIA's Exemption 3 claim. Id.
The standard of review on a district court's grant of summary judgment on a Freedom of Information Act claim is de novo. Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994).
SUMMARY OF ARGUMENT
The district court's judgment should be reversed. The Smith Mundt Act is not an Exemption 3 statute under the FOIA because it does not mandate the withholding of any record. Unlike other cases brought under the FOIA, this case does not involve records that are publicly unavailable and which the government contends it must, by virtue of a statutory prohibition on disclosure, keep secret. Rather the records sought by appellants are routinely made available by the USIA to millions of people around the world. The USIA withholds these same records only from domestic requestors and apparently only while those domestic requestors are physically present in the United States.
Therefore, the question presented is whether the Smith-Mundt Act compels the USIA to withhold the records that are specifically requested under FOIA. The district court's holding -- that an agency may refuse to disclose records to a requestor by citing Exemption 3 of the FOIA even though the same records are made available by the agency to requestors outside the United States and even though the statute contains no express prohibition on disclosure -- cannot be squared with the language of Exemption 3. This Court's precedents require that an Exemption 3 statute specifically mandate non-disclosure within the statutory text.
Moreover, the USIA cannot explain how Congress could have intended so irrational a system: that residents in Buffalo, New York could drive to Canada, pick up the materials they seek fromthe United States embassy, and drive them back into the country, all within the law. Or that friends in London could obtain the records and e-mail them to plaintiffs, but the USIA will deny access to the exact same records to requestors within the United States. The USIA cannot deny that, with developments in technology, particularly the Internet, its policies are irrational. For example, the agency claims that it uses its "international" Internet address to make information available only to "foreign audiences." J.A. 37. But information is available on the Internet equally everywhere in the world once it is published, and traditional geographic and geopolitical boundaries have no relevance to this new, global communications and information medium. J.A. 76.
Finally, the legislative history of the Smith-Mundt Act does not demonstrate any Congressional intent to preclude FOIA access. In fact, the Smith-Mundt Act has been amended four times since enactment of the FOIA without exempting the USIA from the FOIA's coverage. The fact that the statute provides for alternate and additional means of access by inspection at the agency for certain limited classes of persons does not impliedly preclude FOIA access. Nor has Congress ratified the agency's strained interpretation of the statute.
I. THE SMITH-MUNDT ACT IS NOT AN EXEMPTION 3 STATUTE.
A. The Plain Language of the Smith-Mundt Act Does Not Require Withholding of Requested Records From Public Disclosure.
As hardly need be repeated, the FOIA is a disclosure statute. Department of the Air Force v. Rose, 425 U.S. 352, 360-62 (1976). The mandate of the FOIA calls for broad disclosure of government records. CIA v. Sims, 471 U.S. 159, 166 (1985). Exemptions to disclosure are to be narrowly construed. Exemption 3 authorizes withholding if the records are
specifically exempted from disclosure by statute . . . provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of materials to be withheld.
5 U.S.C. § 552(b)(3). In this case, the district court apparently relied on subpart (B). J.A. 7. To qualify under subpart (B), the "Congressional intent to withhold" must be "made manifest in the withholding statute itself." Retired R.R. Workers, Inc. v. United States R.R. Retirement Board, 830 F.2d 331, 336 (D.C. Cir. 1987). The "burden is on the agency to sustain its action." Tax Analysts, 117 F.3d 607, 610 (D.C. Cir. 1997).
Title V of the Smith-Mundt Act, enacted in 1948, was intended by Congress to restrict the USIA from undertaking domestic propaganda efforts without sealing the activities of the agency from public scrutiny. 22 U.S.C. § 1461 provides in relevant part: "the Director is authorized . . . to provide for the preparationand dissemination abroad, of information about the United States;" "[a]ny such information . . . shall not be disseminated within the United States;" and, "on request [such information] shall be available in the English language at the Agency, at all reasonable times following its release as information abroad, for examination only by representatives of United States press associations, newspapers, magazines, radio systems, and stations, and by research students and scholars. . ." Thus, the Act authorizes the USIA to prepare and disseminate its program materials abroad while prohibiting the agency from disseminating the same materials domestically. While Congress intended to promote active dissemination of program materials to foreign audiences, it also intended to restrict the USIA from becoming a domestic propaganda machine. See Gartner v. USIA, 726 F. Supp. 1183, 1186 (S.D. Iowa 1989).
The Smith-Mundt Act cannot qualify under the rigorous standards governing Exemption 3 statutes because it does not contain any mandate against disclosure. It is well-established that Congressional intent to exempt matters from disclosure must be express and manifest in the actual words of the statute. See Reporters Comm. v. United States Dep't of Justice, 816 F.2d 730, 734 (D.C. Cir. 1987) (citing Baldridge v. Shapiro, 455 U.S. 345, 355 (1982)), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev'd on other grounds, 489 U.S. 749 (1989); see also Mudge Rose Guthrie Alexander & Ferndon v. United States InternationalTrade Comm'n, 846 F.2d 1527, 1530 (D.C. Cir. 1988); Railroad Workers, 830 F.2d at 332 ("shall not be revealed or open to inspection nor be published in any manner"); Irons v. Sears & Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979); accord Cal-Almond, Inc. v. USDA, 960 F.2d 105, 108 (9th Cir. 1992); Anderson v. HHS, 907 F.2d 936, 951 n.19 (10th Cir. 1990). "[O]nly explicit nondisclosure statutes that evidence a Congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption." Irons, 606 F.2d at 1220. Nonetheless, the district court held that because the Act mandates that information produced for dissemination abroad "shall not be disseminated within the United States," and that "no program material prepared by the [USIA] shall be distributed within the United States," the USIA may not produce the requested records under the FOIA without violating the Act. J.A. 9.
A prohibition against domestic dissemination or distribution is not synonymous with a prohibition against domestic disclosure. One need look no further than a dictionary to understand the distinction between dissemination and disclosure. The Webster's New Collegiate Dictionary defines "disseminate" as "to spread abroad or through sowing seed," and "distribute" as "to spread out so as to cover something." Dissemination and distribution serve as synonyms for each other. "Disclose" is not a synonym for either "disseminate" or "distribute," and for good reason as the dictionary definition of "disclose" is "to open up" or "to exposeto view" with a synonym being "to reveal." Dissemination and distribution connote an active effort to initiate and engage in domestic propaganda and contrast markedly from the passive activity of making available such materials and information upon request. Other federal statutes that use the term disseminate similarly describe an active effort to spread information through publication, mass mailings, or broadcasts. See, e.g., 2 U.S.C. § 59g (mass mailings by Senators is "disseminating" under the frank); 5 U.S.C. App. § 105 (Ethics In Govt. Act) (distinguishing between information "made available" and that which is "disseminated"); 7 U.S.C. § 3175 (Duty of Secretary of HHS to "disseminate" results of nutrition research); 12 U.S.C. § 1701x(a)(1)(i) (Secretary of HUD to "disseminate" information re construction and operation of low and moderate income housing); 14 U.S.C. § 147 (Secretary of Commerce to facilitate preparation and "dissemination" of weather reports, forecasts and warnings).
In fact, the word "disseminate" is used throughout the United States Code precisely to identify the acts of soliciting or distributing materials on one's own initiative, either where Congress intended to proscribe such activity, see, e.g., 15 U.S.C. § 52 (making unlawful the dissemination of false advertisements), or to authorize it. See, e.g., 22 U.S.C. § 2551 (authorizing U.S. Arms Control and Disarmament Agency to disseminate and coordinate public information concerning arms control and disarmament). Similarly, dissemination is used to describe the acts ofbroadcasting or mass mailings. See, e.g., 47 U.S.C. § 153 ("'broadcasting' means the dissemination of radio communications intended to be received by the public, directly or by the intermediary of radio stations"); 50 U.S.C. § 789 (making unlawful transmissions through the mail of Communist literature intended to be "circulated or disseminated" among two or more persons unless labeled as Communist literature).
Moreover, other sections of the United States Code recognize the distinction between materials for which dissemination is required or proscribed and the separate activity of obtaining access to records through inspection or agency disclosure. For example, the Foreign Agents Registration Act provides that any informational materials in the interests of a foreign agent that are transmitted through the mail and which are "intended to be disseminated or circulated among two or more persons" must contain a conspicuous statement so identifying the materials. 22 U.S.C. § 614(a)-(b). But the same section of the statute provides that those materials be filed with the Attorney General and are then available for public inspection. Id., § 614(c). See also 42 U.S.C. §§ 2167-68 (distinguishing between regulations promulgated by the Atomic Energy Commission "to prohibit unauthorized disclosure of safeguards information which specifically identifies a licensee's or applicant's security measures," and regulations promulgated by the Commission "to prohibit the unauthorized dissemination of unclassified information").
Unlike the statutes previously upheld as Exemption 3 statutes, the Smith Mundt Act does not mandate that the USIA not disclose specific records or information. See, e.g., CIA v. Sims, 471 U.S. at 177 (50 U.S.C. § 403(d)(3) directing CIA to protect intelligence sources and methods from "unauthorized disclosure"); Baldridge v. Shapiro, 455 U.S. 345, 355 (1982) (13 U.S.C. §§ 8(b) providing that the Secretary may "not disclose" information reported on census and section 9(a) may not permit anyone "to examine" individual reports); Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 122 (1980) (15 U.S.C. § 2055(b)(1) governing "disclosure" of information submitted to the CPSC); Tax Analysts, 117 F.3d at 611 (26 U.S.C. § 6103's prohibition on disclosure of tax return information); A Michael's Piano, Inc. v. FTC, 18 F.3d 138, 146 (2d Cir.), (15 U.S.C. § 57b-22(f) prohibiting "disclosure" of certain FTC investigatory records), cert. denied, 115 S. Ct. 574 (1994); Chong v. DEA, 929 F.2d 729, 733-35 (D.C. Cir. 1991) (18 U.S.C. § 2510-20 exempt "disclosing" contents of electronic surveillance conducted in violation of Act); Church of Scientology v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986) (same on 26 U.S.C. § 6103); Irons, 606 F.2d at 1221 (35 U.S.C. § 122 prohibiting "disclosure" of patent applications and information concerning them). In addition, in contrast to other Exemption 3 cases in which the government sought to restrict access to confidential records that had been withheld from public disclosure, here the government seeks to restrict access to records that are already freely available aslong as the requestor is outside the United States.
Because the plain language of the Smith Mundt Act contains no express mandate against disclosure, that should be sufficient to demonstrate that it cannot be an Exemption 3 statute. Reading section 1461 in its entire statutory context, and in light of its purpose, only confirms that Congress never intended to seal off the activities of the USIA from public disclosure or to block domestic access upon request to these materials. See Crandon v. United States, 494 U.S. 152, 158 (1990) ("In determining the meaning of a statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.")
Congress established the USIA to create a public voice for the United States in the international arena without "creating a propaganda agency that could be used by the party in power to indoctrinate the American public." Gartner, 726 F. Supp. at 1186. To accomplish this objective, Congress guaranteed public accountability, rather than invisibility, by providing for public access to USIA materials and not exempting the USIA from FOIA disclosure. Compare S. Rep. No. 647, 89th Cong., 1st Sess. 2 (1965) (provision making USIA material available for inspection "was included in law in order to assure that the output of USIA would be subject at all times to scrutiny by responsible persons outside the agency.") with John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) (purpose of FOIA to hold public officialsaccountable to citizenry). This distinction makes sense as Congress intended to prevent the perceived evil of domestic audiences receiving propaganda unwittingly, but was not concerned about requestors viewing USIA materials. Receiving information upon request requires that the requestor take certain affirmative and volitional steps. Those who query a search on the Internet, like FOIA requestors and those who visit the agency to examine materials, retrieve information only by specifically seeking it out. J.A. 80. Similarly, no information flows through cyberspace to the requestor of the information from a Web site server without the requestor's explicit initiative and request. Id. Therefore, while the Smith Mundt Act may limit the agency's domestic public information activities, the USIA's construction to forbid FOIA disclosure sweeps too broadly.
Moreover, the fact that Congress has repeatedly authorized the USIA to disseminate information using means of radio, television and now, the Internet, that are certain to result in some transmission to domestic audiences, weighs against any conclusion that Congress intended to specifically exempt the requested information from disclosure. See supra at 6-7 (citing statutes and cases). So too, the 1994 amendments to the Smith Mundt Act providing for the USIA to transfer motion pictures, films, videotapes and other materials to the National Archives for "domestic distribution" twelve years after their dissemination abroad also counsels strongly against any conclusion that Congresshas intended to exempt USIA programming materials from domestic disclosure under the FOIA for all time. 22 U.S.C. § 1461(b); 62 Fed. Reg. 31,724-25 (codified at 36 C.F.R. Pt. 1256).
The USIA's interpretation of section 1461 as an Exemption 3 statute runs headlong into Congress's manifest intent to provide for public inspection of USIA programming materials. After all, section 1461 provides that the materials "shall be available in the English language at the Agency, at all reasonable times, following its release as information abroad, for examination only by representatives of United States press associations, newspapers, magazine, radio systems and stations, and by research students and scholars." As discussed infra at pages 31-36, this special inspection provision dates back to the original enactment of the Act, predating FOIA by nearly twenty years. There is no evidence that Congress subsequently intended these by-appointment inspections to supplant FOIA access. Rather than suggesting a Congressional intent to keep program materials confidential, that Congress provided for special inspection demonstrates quite the opposite: that Congress intended that public oversight serve as a check upon the activities of the USIA. This is the twin purpose to Congress's purpose in enacting FOIA: "to ensure an informed citizenry, vital to the functioning of this democratic society, needed to check again corruption and to hold the government accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
Therefore, the Smith Mundt Act can be most sensibly read to effectuate both of its statutory purposes: to permit domestic access to USIA materials, while barring the agency from engaging in domestic propaganda. The district court ignored or misapplied well-established Exemption 3 precedents. The Smith-Mundt Act does not specifically forbid disclosure of agency records, and for this reason, the district court's order should be reversed.
B. The History of Congressional Amendment of the Smith Mundt Act Does Not Manifest An Intent To Mandate Non Disclosure of USIA's Overseas Programming Materials.
Legislative history is, of course, not dispositive of Exemption 3 status, Reporters Comm., 816 F.2d at 36. To the extent it is relevant, however, the history of the Smith-Mundt Act confirms that Congress did not intend the word "disseminate" to be read as a disclosure prohibition. Throughout this litigation, the USIA has sought to rely on the Senate Foreign Relations Committee's rejection in 1967 of statutory language that would have clarified that the USIA's program materials were to be made available for domestic release. But, by looking to the evolution of the Smith Mundt Act through its successive amendments -- looking to what Congress actually did rather than what one subcommittee did not do -- it becomes clear that Congress never intended to cut off domestic access to the USIA's materials.
As originally enacted, nearly twenty years before the FOIA, Title V authorized the Secretary of State to disseminate information about the United States abroad and mandated that such information be made available for examination at the Department of State. See United States Information and Educational Exchange Act of 1948, Pub. L. No. 80-402, section 501, 1948 U.S.C.C.A.N. (62 Stat.) 4, 8 (1948) (codified as amended at 22 U.S.C. § 1461). The "examination provision" was added as an amendment during the House floor debate. See 93 Cong. Rec. 6991 (June 13, 1947). As originally introduced, the bill provided that all materialsproduced for dissemination abroad would be made available to domestic news organizations in English, not just the original language of publication or broadcast, within fifteen days of release abroad to "guarantee that private press and radio associations as well as 435 Members of Congress [sic] will be constantly on guard with complete information at their disposal to make certain the State Department programs are effectively and properly prepared and planned." See United States Information and Exchange Act of 1947: Hearings on H.R. 3342 Before A Subcommittee of the Senate Committee on Foreign Relations, 80th Cong., 1st Sess. 66 (1947). The examination provision was later amended to require only examination at the agency, apparently out of a concern in those pre-FOIA that press organizations would put in blanket requests, at great expense to the agency, and -- in an era well before the advent of the photocopier -- highjack the agency's pre- Xerox reproduction systems (if there were any) for their own purposes. Id. at 82-83.
In 1967, two proposals to clarify the Act were considered by the Senate Foreign Relations Committee. The U.S. Advisory Commission on Information proposed to amend the Act to clarify that materials were to be made available for domestic release. See To Amend Further Section 1011 of the U.S. Information and Educational Exchange Act of 1948, as amended: Hearings on S. 1030 Before The Senate Committee on Foreign Relations, 90th Cong., 1st Sess. 89-119 (1967). The Advisory Commission's proposal was never enacted.
In addition, the Foreign Relations Committee which was chaired by Senator William Fulbright proposed to clarify restrictions on domestic distribution by the agency. That proposal also was not enacted. Id. at 91. In offering his proposal, Senator Fulbright explained that he was concerned not about public disclosure--"I thought we had disclosure. There is no secret in that the material is available to our people," Hrgs. on S. 1030 at 113,-- but "[t]he point I have in mind is . . . the background for feeling nervous about authorizing active dissemination in this country of the USIA of material which is clearly prepared for achieving certain results in foreign countries." Id. at 114. In not adopting either proposal, Congress left undisturbed the application of the recently enacted FOIA to the USIA, after hearing testimony from the Chair of the U.S. Advisory Commission on Information that the agency's non- disclosure policies always had been de facto rather than de jure. Id. at 90.
Then, in 1972, an incident heightened Congressional fears about government propaganda and led to a tightening of the ban on the government engaging in domestic dissemination. See Pub. L. No. 92-352, Title II, § 204, 86 Stat. 494. In response to learning that Senator James Buckley had obtained a copy of a USIA film entitled "Czechoslovakia 1968" and intended to air it over New York public television, Congress added the "domestic dissemination" ban. See S. Rep. No. 754, 92nd Cong., 2d Sess. 85 (1972). That amendment was enacted with two provisos: first, to permit researchstudents and scholars to examine USIA products in Washington, and second, to clarify that USIA materials could continue to be made available to Members of Congress but not for official dissemination, as Senator Buckley had proposed to do. See H.R. Conf. Rep. No. 1145, 92nd Cong., 2d Sess. 16 (1972).
Despite Congress's close attention to USIA's activities in 1972, there was no mention of exempting USIA records from FOIA disclosure. Instead, Congress took steps to deal with its immediate concern -- the USIA's assistance to government officials intent on disseminating USIA materials for purposes of domestic propaganda -- and restricted the agency's authorized activities accordingly.
Three subsequent amendments underscore Congress's consistent intention: to prevent the government from engaging in domestic propaganda and to ensure public access. (1) In 1985, Congress added 22 U.S.C. § 1461-1a restricting domestic "distribution" of USIA-produced information and the expenditure of monies to influence domestic public opinion "to prohibit the USIA from engaging in domestic propaganda and to restate the existing prohibitions on dissemination of USIA products." 131 Cong. Rec. 14,945 (June 7, 1985). (2) In 1990, Congress amended section 1461 to clarify procedures for "domestic distribution" by the Archivist of information produced by the USIA within the United States. 22 U.S.C. § 1461(b). (3) And, in 1994, Congress amended section 1461- 1a to provide that the Act was not to be interpreted to precludethe USIA from responding to inquiries about its operations, policies, and programs. Pub. L. 103-236, Title II, § 232, Apr. 30, 1994, 108 Stat. 424.
There are several lessons to derive from the history of the Smith Mundt Act. First, recognizing the weakness of the textual argument and that Congress has, despite amendments to the Smith Mundt Act, never specifically mandated non-disclosure, the USIA relies on the fact that one Senate committee voted against an amendment clarifying that the USIA must release its materials domestically. But, courts should be reluctant to draw inferences from Congress's failure to act. See Brecht v. Abrahamson, 113 S. Ct. 1710, 1719 (1993). Moreover, although Congress did not enact the proposal rejected in committee to make explicit that compliance with the one-year old FOIA was required, it also rejected a contrary proposal from Senator Fulbright to tighten the ban on domestic distribution by the agency.See footnote 4 Congress has neither specifically mandated non-disclosure nor specifically repudiated the USIA's non-disclosure policies. This complexity and ambiguity limits use of the legislative history as a textual aid. See Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 610 (1991) (ambiguous legislative history of little use to statutory interpretation); see also American Hosp. Ass'n v. NLRB, 499 U.S. 606, 616-17 (1991) (admonishing that unenacted materials such asdiscussions during congressional hearings do not have force of law).
Indeed, the USIA's argument here is similar to, but weaker than, one the Supreme Court examined in Mortier in which the ambiguity in the legislative history precluded a judicial determination that Congress had the "clear and manifest purpose" to preempt local pesticide regulation." 501 U.S. at 610 (citation omitted). In Mortier, the legislative history of the Federal Insecticide, Fungicide and Rodenticide Act, similar to the legislative history of the Smith Mundt Act here, demonstrated that two conflicting amendments on the subject of preemption had been considered and rejected by two different Congressional subcommittees. Id. The Court held that the legislative history was "complex and ambiguous" and admonished that "field preemption cannot be inferred." Id. at 612. Just like the ambiguous legislative history in Mortier could not provide a clear statement of Congress's intent to preempt local ordinances, here too the ambiguous 1967 legislative history the USIA has relied upon cannot provide a clear statement by Congress to reverse the normal presumption of FOIA access.
Second, the USIA's interpretation of the 1972 legislative history -- that the domestic dissemination ban implicitly overrode the previously-enacted FOIA -- runs headlong into the venerable principle that repeals by implication are not favored. See Morton v. Mancari, 417 U.S. 535, 550 (1974) (citing Posadas v. NationalCity Bank, 296 U.S. 497, 503 (1936)). Congress knew that FOIA existed when it amended the Smith-Mundt Act at least four times since 1966. Yet Congress has never expressly exempted the USIA from disclosure under FOIA and has never given the slightest indication that anything it had done had any effect on rights under FOIA. "In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable." Morton, 417 U.S. at 550 (citation omitted). See also 5 U.S.C. § 559 (a "subsequent statute may not be held to supersede or modify this subchapter . . . except to the extent it does expressly").
Here, the Smith Mundt Act and the FOIA are easily reconciled. By construing the dissemination prohibition to mean that the USIA is forbidden from engaging in domestic propaganda rather than disclosing agency records in response to specific FOIA requests, the agency can easily comply with both statutes. In response to concerns that the agency or other organs of the government might undertake domestic propaganda efforts, Congress has strengthened the domestic dissemination ban to protect listeners, readers and viewers from government indoctrination. But there is no evidence that Congress has been concerned about private individuals obtaining USIA materials upon request.
Third, there is no basis for the district court's conclusion that Congress has somehow ratified the USIA's Exemption 3 claim. J.A. 9. The USIA argues that, because its Annual FOIA Reports to Congress state that the agency invokes Exemption 3, Congress's failure to override this agency action ratified the agency's interpretation of the Smith-Mundt Act. This argument is completely off-target.
Presuming Congressional ratification by acquiescence is specifically disfavored. See Sweet Home Chapter v. Babbitt, 17 F.3d 1463, 1469-72 (D.C. Cir. 1994) (reviewing case law), rev'd on other grounds, 115 S. Ct. 2407 (1995). For this reason, the Supreme Court has required considerably more in the way of affirmative evidence that Congress's inaction was a reasoned or deliberate acquiescence. See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 137 (1985) (Conference Committee defeated House effort to overrule Corp. of Engineers' jurisdiction over wetlands); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 593 & n.14 (1983) (acquiescence in Title VI regulations); Bob Jones University v. United States, 461 U.S. 574, 600-01 (1983) (Congress held hearings within one month after the IRS announcement of its challenged policy and defeated thirteen bills in twelve years to overrule challenged policy). Here, the USIA cannot point to any concrete evidence of Congressional acquiescence.
Moreover, even a cursory examination of the USIA's Annual FOIA Report refutes any argument that Congress's inaction should be equated with ratification. See J.A. 57-59. The FOIA Report states that the USIA received 753 FOIA requests in 1995 and denied 168. Then it reports that during 1995 the USIA invoked 22 U.S.C. § 1461 for Exemption 3 three times, whereas, by comparison, it invoked Exemption 6 eighty-three times, Exemption 2 forty-four times, and Exemption 4 forty-three times. Therefore, while the FOIA Report does convey the information that the USIA has invoked Exemption 3, it hardly red flags the issue in a way that would alert a member of Congress to the USIA's wholesale denial of access to agency records for United States residents. In fact, quite the opposite is true: the average reader would likely think that the agency regularly makes records available under FOIA, since nearly 600 requests (or 70%) were apparently accommodated in full. See United States v. Wells, 117 S. Ct. 921, 929 (1997) ([I]t is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law.") (citation omitted).
C. Alternate Means of Access Do Not Preclude FOIA Access.
As an additional defense against the FOIA claim, the USIA argues that it does not cut off all domestic access because it permits certain classes of persons to inspect program materials at the USIA upon special appointment. The problem with the USIA's argument -- that domestic access is provided by special appointment to designated representatives of the public -- is that it is irreconcilable with the agency's Exemption 3 argument: that it is forbidden from disclosing the requested materials by the statute. Just as its wide dissemination of program materials throughout the world undercuts the Exemption 3 claim, so too the inspectionmechanism calls into question the USIA's Exemption 3 claim.
For that reason, the USIA has argued that the examination mechanism does not demonstrate that Congress intended to allow public access to USIA materials, but rather should be read to impliedly supersede FOIA access. There is no authority for this argument. An alternate access mechanism does not displace or supersede FOIA. See United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 153-54 (1989) (rejecting argument that because judicial opinions are available through the courts that FOIA cannot be used to access them from agency that possesses them); see also Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1285 (D.C. Cir. 1983) (requirement that agency prepare and disclose summaries on medical devices did not preclude FOIA access to raw data). The USIA cited Church of Scientology, 792 F.2d at 149-50, in the district court. But that case does not help its claim. Rather than suggesting that a public examination provision creates an Exemption 3 statute, that case merely explained that a statute may contain exceptions for disclosure and still mandate nondisclosure. The existence of an alternative inspection mechanism does not suggest that Congress intended to displace the FOIA on a wholesale basis.
In addition, the statutory "examination" provision dates back to the original enactment of the Act in 1948--eighteen years before the FOIA was passed--and has been amended in the years since FOIA's enactment, manifesting a specific Congressional intent to ensurepublic oversight of the USIA's activities, not an intent to keep such information secret from domestic requestors. It may be that the examination mechanism became largely superfluous once FOIA was enacted, although the requirement of availability in English is not one imposed by FOIA.See footnote 5
But one form of access does not preclude the other. Rather than reading the two access provisions as in conflict, FOIA and the Smith-Mundt Act should be read in a way that allows both statutes to have meaning. See United States v. Borden Co., 308 U.S. 188, 198 (1939) ("When there are two acts upon the same subject, the rule is to give effect to both if possible."). The examination clause ensures that a mechanism is in place so that, even if a particular FOIA request is burdensome, or if a scholar wishes to pursue general research in a subject area and cannot formulate a targeted FOIA request, 5 U.S.C. § 552(a)(3) (requests must "reasonably describe such records"), or wants to review a large volume of records, requestors in certain classes have additional means for obtaining access to USIA records. Moreover, Congress's provision of an alternate means to access agency records strongly suggests that Congress did not intend to specifically forbid disclosure. Cf. St. Paul's Benevolent Educ. & Missionary Inst. v. United States., 506 F. Supp. 822, 830 (N.D. Ga. 1980) (Copyright Act, 17 U.S.C. § 705(b) is not an Exemption 3 statute because itpermits public inspection rather than prohibiting disclosure).
As we have noted, the USIA may easily comply with FOIA's dictates and provide access under the Act for examination of materials at the agency for certain classes of requestors. The statutory language is more naturally read to mean that "only" special classes of persons are entitled to invoke the alternate examination mechanism. "Any person," the term the FOIA uses to designate appropriate requestors, has no rights of access under the special inspection provision. Compare 5 U.S.C. § 552(a)(3) with 22 U.S.C. § 1461(a). Our interpretation is also more compatible with the USIA's recognition that the Act does not impose any restrictions on domestic republication or rebroadcast by those who obtain USIA materials. See Gartner, supra; see also Landmark Communication Inc. v. Virginia, 435 U.S. 829, 838 (1978) (government may not prevent republication of lawfully obtained information). As the USIA's declarant Lola Secora attests, an individual who obtains the agency's "International" Internet addresses may access the Web sites, where overseas programming materials are made available. J.A. 38.
Finally, the language of the examination clause does not forbid a private party from making copies of the USIA's records as the USIA claims. The USIA has argued that the statutory language "for examination only by representatives of the United States press, [etc.]" means that the agency may not allow examiners to obtain copies under the FOIA. Similar arguments have been soundlyrejected by the courts. See, e.g., Julian v. United States Department of Justice, 806 F.2d 1411, 1419 n.7 (9th Cir. 1986), aff'd, 486 U.S. 1 (1988) (prisoner allowed to see, but not copy, pre-sentence reports under sentencing law, was not precluded from obtaining copies of report under FOIA). That there would be a more limited form of access under the Act without FOIA does not answer the fundamental question of whether the USIA has specifically been exempted from FOIA coverage. "FOIA speaks in terms of disclosure and nondisclosure. It does not recognize degrees of disclosure, such as permitting viewing, but not copying, of documents." Id. (citing Berry v. Department of Justice, 733 F.2d 1343, 1355 n.19 (9th Cir. 1984)).
II. INTERNET ADDRESSES ARE AGENCY RECORDS AND ARE NOT EXEMPT UNDER EITHER EXEMPTION 2 OR 3.
The district court held that it lacked jurisdiction over appellants' claim for the USIA's Internet addresses because the addresses are not agency records. J.A. 6. The district court's opinion sets a dangerous precedent for application of the FOIA to electronic records. After all, it is well established that electronic records are "records" for purposes of the FOIA. See Yeager v. DEA, 678 F.2d 315, 321 (D.C. Cir. 1982); Long v. IRS, 596 F.2d 362, 364-65 (9th Cir. 1979), cert. denied, 446 U.S. 917 (1980); cf. Armstrong v. Executive Office of the President, 1 F.3d 1274, 1283-85 (D.C. Cir. 1993). Indeed, the USIA recognized that records containing Internet addresses are agency records and didnot advance the extreme position adopted by the district court.See footnote 6 The district court's opinion has no defenders, is clearly in error, and should be reversed.
The USIA has asserted Exemption 2 and 3 claims for withholding of the Internet addresses. The agency recognizes, however, that if the Smith Mundt Act is not an Exemption 3 statute, then there is no Exemption 2 claim because the agency's Exemption 2 claim is that disclosure of the Internet addresses risks circumventing the Smith Mundt Act, and not some other independent law.
As to the USIA's Exemption 3 claim over the Internet addresses, that claim has been made inconsistently. In its first letter denying FOIA access, the USIA cited Exemption 2 alone for the Internet addresses apparently recognizing that the addresses are not "overseas programming materials." The government bears the burden of proving "specifically and clearly that requested agency records fall into the category of document that Congress has exempted from mandatory disclosure." Hayden v. National Security Agency, 608 F.2d 1381, 1390 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980). This it has not done. Nor could it. Even assuming arguendo that the Smith-Mundt Act is an Exemption 3 statute, the Internet addresses are not "overseas programming materials." In fact, the Internet addresses are more akin to theradio or television frequency on which the USIA broadcasts or the mailing addresses of their overseas missions.
In the alternative, the USIA has argued that it is withholding the Internet addresses under the "high part" of Exemption 2. Exemption 2 provides that the FOIA 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). To qualify under Exemption 2, materials must be (1) "predominantly internal," meaning not of substantial public interest, and (2) the disclosure would significantly risk circumvention of agency regulations or statutes. Crooker v. BATF, 670 F.2d 1051, 1056-57, 1073-74 (D.C. Cir. 1981) (en banc).
The agency's claim fails for a number of reasons. First, the argument that the Internet addresses are "predominantly internal" is preposterous. They are freely disseminated and even advertized outside the United States. J.A. 37. Their disclosure if also of considerable public interest for United States citizens to be able to discover how their government is representing the country's interests abroad. See Department of Justice v. Reporters Comm., 489 U.S. 749, 773 (1989).
Second, disclosure of the Internet addresses will not risk circumvention of any law. Even if section 1461 precluded disclosure and not just dissemination of the USIA's programming materials, an individual who obtains the Internet addresses may freely access the Internet sites where overseas programmingmaterials are made available. J.A. 38. The Smith-Mundt Act does not purport to restrict United States citizens from obtaining access to USIA information whether from a foreign citizen or by accessing "foreign" Internet sites. For that reason, there is no circumvention of the law. See Landmark Communication Inc., 435 U.S. at 838. To qualify under Exemption 2, disclosure must risk circumvention of the law by the requestor. See Putnam v. United States Dep't of Justice, 873 F. Supp. 705, 710 (D.D.C. 1995) (release of computer codes would risk unauthorized access to National Crime Information computer system). By contrast, there is no prohibition on plaintiffs from accessing the requested materials. Indeed, if they locate them, they are free to copy them, download them and retransmit them. J.A. 38. The agency agrees that the Smith-Mundt Act imposes no restrictions on any entities other than the agency itself. Therefore, even under the agency's own logic, disclosing the Internet addresses to requestors, who can then visit the USIA Web sites themselves, would not violate any restrictions under the Act or any other law.
Finally, the agency's