On Appeal from the United States District Court for the Middle District of Pennsylvania (Scranton) D.C. Civil No. 84-1024. On Appeal from the United States District Court for the Middle District of Pennsylvania (Scranton) D.C. Civil No. 84-1024. May 5, 1986, Argued in Banc.
STAPLETON, Circuit Judge:
Capital Cities Media, Inc. and Robert Scheier, the publisher and Assistant City Editor of a Wilkes-Barre newspaper, the Times Leader, appeal from an order of the district court denying their motion for a preliminary injunction and dismissing their complaint. Defendants are the Pennsylvania Department of Environmental Resources and various of its officials. Appellants ("Times Leader") contend that appellees ("D.E.R." or "Department") denied them access to records in the sole possession of D.E.R., in violation of Times Leader's First Amendment and state law "right to know". Times Leader further contends that the Department's practices with respect to the production and withholding of its records deprives Times Leader of equal protection of the law.
The district court dismissed the complaint for failure to state a claim under the First Amendment and Equal Protection Clause, and held that, under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984), the Eleventh Amendment barred the court from considering the state law basis for Times Leader's claim of access to the records.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary. We assume, as we must, that Times Leader will be able to prove the facts which it alleges in its amended complaint. Moreover, because the district court treated an affidavit filed by Times Leader as a supplement to its complaint, we do likewise and assume the truth of the allegations contained therein for purposes of this appeal.
In December 1983, a major northeast Pennsylvania supplier of drinking water, Pennsylvania Gas & Water Company, placed 250,000 customers on water use restrictions after an outbreak of giardiasis, an intestinal illness caused by the contamination of drinking water by giardia cysts. Over four hundred consumers contracted the illness. D.E.R. is responsible for enforcing various environmental laws and regulations designed to protect the integrity of the public water supplies.
Times Leader investigated the causes of the giardiasis outbreak, including D.E.R.'s possible culpability, and published some four hundred articles and opinion pieces dealing with this incident, approximately one fifth of which have focused on the D.E.R. and the individual defendants in this case. Some of these articles and opinion pieces raised questions of whether political influence or other improper considerations led D.E.R. selectively to enforce its environmental mandate. The articles also examined the enforcement strategy of D.E.R. and its predecessor agencies with regard to sewage discharge problems of Roaring Brook Township and Spring Brook Township, the two townships identified by D.E.R. as the most likely sources of the giardia cyst contamination.
Pursuant to its investigation, Times Leader submitted a written request to D.E.R. for access to documents, including:
Records, identifying the 80 to 85 known sewage violators in Spring Brook Twp. Records, including dates of surveys made to identify the sewage violators. Correspondence between DER and Spring Brook Twp. officials during the past 10 years.
Roaring Brook Estates - permits issued and correspondence concerning the sewage problems there. Elmbrook Development - permits issued and corres- pondence concerning the sewage problems there. Correspondence between DER and Roaring Brook Twp. officials during the past 10 years.
On April 18, 1984, and for several days thereafter, Times Leader inspected a substantial amount of materials provided by D.E.R. at the Department's Wilkes-Barre office. During that inspection, D.E.R. officials informed Times Leader that certain documents had been withheld from the inspection, apparently because
Department policy statewide allows for review of all files at Regional Offices and in Harrisburg with the following exceptions:
1. Interoffice memorandum.
2. Documents relating to attorney/client relationships.
According to Times Leader, the materials it inspected included a substantial number of documents which fell into these excepted categories. Moreover, D.E.R. has been unable to provide Times Leader with a copy of this policy. Indeed, an Assistant Counsel for D.E.R. informed Times Leader that there was in fact no formal statewide policy on public access to information, and that each regional D.E.R. office generally could set its own standard.
At the request of Times Leader, D.E.R. verbally provided a more complete description of the withheld documents. The documents included citizen complaints (six to twelve documents), attorney-client communications (three to four documents), memoranda generated by technical personnel that discuss enforcement strategy and options (approximately six documents); and memoranda generated by technical personnel discussing the results of D.E.R.'s investigation of the giardiasis or sewer problems (undisclosed number of documents). The bulk of the documents fall into the last category.
The Department also provided Times Leader with a copy of its "Public Information General Policy and Guidelines." That document states that "All citizens shall be provided access to Departmental records and documents," with the following exceptions:
1. Any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its duties;
2. Any item which is prohibited, restricted or forbidden by statute or order of court, or which would operate to the prejudice or impairment of the person's reputation or personal security;
3. Any item which would result in the loss by the Commonwealth or any political subdivision thereof, of federal funds.
The issue posed by Times Leader is whether the First and Fourteenth Amendments to the United States Constitution require officials of a state agency either to furnish information relating to an agency investigation to members of the public who request such information or to justify their refusal to do so by demonstrating a compelling state interest which cannot be vindicated in a less restrictive manner. Times Leader urges that the First and Fourteenth Amendments impose such an obligation on all public officials in order that the people may know about, evaluate and influence the activities of their government.
There is, of course, no doubt about the value to the Republic of an informed electorate. Nor can there be doubt that a core purpose of the free speech and press clause is to promote the circulation of information and ideas necessary to make government by the people a workable reality. At the same time, neither Times Leader nor any other commentator has suggested that it is necessary, desirable, or even possible to provide the citizenry with access to all of the information in the possession of their governments. As a result, the underlying issue which must be faced here is not whether it is desirable to have an informed electorate, but rather, who is to decide which government-held information must be made available to the public and by what criteria such decisions will be made. If a right of access were implicit in the First Amendment, as Times Leader urges, this task would be assigned to the judiciary and the courts would be required to fashion a constitutional freedom of information act.
The First Amendment, however, seeks to promote the ideal of an informed electorate by barring government interference with the flow of information and ideas to the public. The founding fathers intended affirmative rights of access to government-held information, other than those expressly conferred by the Constitution, to depend upon political decisions made by the people and their elected representatives. This conclusion finds support in the text of the First Amendment, the historical gloss on that text, and the First Amendment caselaw.
The First Amendment provides that "Congress . . . shall make no law . . . abridging the freedom of speech, or of the press." The Fourteenth Amendment extends this preclusion to actions by the states. This means that, with a few, carefully crafted exceptions, the government can neither interfere with anyone who is attempting to speak or publish nor punish him or her thereafter for having done so.*fn2 It further means that government cannot interfere with one reading or hearing that which someone else wishes to communicate.*fn3 The free speech clause also precludes government interference with the flow of information at a pre-publication stage. Thus, the government may not interfere with those seeking information to communicate to others, "There is an undoubted right to gather news 'from any source by means within the law.'" Houchins v. KQED, Inc., 438 U.S. 1, 11, 57 L. Ed. 2d 553, 98 S. Ct. 2588, 438 U.S. 1, 57 L. Ed. 2d 553, 98 S. Ct. 2588 (1978) (quoting Branzburg v. Hayes, 408 U.S. 665, 681-82, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972)). Moreover, we now know that the free speech clause bears government interference with the flow of information through the closure of governmental proceedings that historically have been open to the public, except in certain limited circumstances.*fn4 Government interference in each of these guises can fairly be characterized, in the words of the First Amendment, as "abridging the freedom of speech."
By contrast, it requires some straining of the text to construe the Amendment's explicit preclusion of government interference as conferring upon each citizen a presumptive right of access to any government-held information which may interest him or her. While one disposed to stretch the language to reach this case may do so, it nevertheless requires a level of abstraction that we are unwilling to ascribe to the framers of the First Amendment. It simply does not seem reasonable to suppose that the free speech clause would speak, as it does, solely to government interference if the drafters had thereby intended to create a right to know and a concomitant governmental duty to disclose.
Fortunately, we have more than the text of the free speech clause to guide us. The issue that we face today is not one that has arisen only recently in our evolution as a free society. Citizen access to government-held information was an issue raised and debated in the Constitutional Convention, in the state assemblies that deliberated on ratification, and in the First Congress of the United States. Those debates confirm that the founders of the Republic considered an informed public essential to our representative system of self-government.
The concern for an informed public led to the adoption of a number of constitutional provisions. In Article I, Section 9, it is provided that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." Article II, Section 3 further provides that the President "shall from time to time give to the Congress Information of the State of the Union . . ." Article I, Section 5 specifically directs that each House of Congress shall "from time to time publish . . . [a Journal of its Proceedings], excepting such Parts as may in their Judgment require Secrecy."*fn5 Finally, in addition to these specific requirements of governmental disclosure, the First Congress proposed, and the States ratified, the First Amendment's preclusion of governmental interference with speech and the press. Beyond these provisions, history indicates that the founders of the Republic left decisions concerning the release of government-held information to the democratic process.
Some participants in these debates felt that these constitutional provisions were inadequate. In the discussion leading to adoption of the Journal publication clause, for example, James Wilson, a member of the Pennsylvania delegation, contended that "the people have a right to know what their agents are doing or have done, and it should not be in the option of the legislature to conceal their proceedings."*fn6 His sentiments were echoed by other delegates to the Convention.*fn7 At the Virginia ratification convention, Patrick Henry decried the ambiguity of the publication clause:
Give us at least a plausible apology why Congress should keep their proceedings in secret. They have the power of keeping them secret as long as they please [in article I, section 2, clause 3], for the provision for a periodical publication is too inexplicit and ambiguous to avail any thing. The expression from time to time, as I have more than once observed, admits of any extension. They may carry on the most wicked and pernicious of schemes under the dark veil of secrecy. The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them. The most iniquitous plots may be carried on against her liberty and happiness.*fn8
Nonetheless, even Henry conceded that not all transactions should be published, such as those related to "military operations or affairs of great consequence . . . till the end which required their secrecy should have been effected."*fn9 As James Madison observed, "[t]here never was any legislative assembly without a discretionary power of concealing important transactions, the publication of which might be detrimental to the community."*fn10 Despite the reluctance of some, this view ultimately prevailed and resulted in the people's representatives being granted the right to withhold from the public "such Parts [of their Proceedings] as may in their Judgment require Secrecy."
Nor did the founding fathers, as they undertook the practical implementation of their new government, find that public, at will access to government information was a necessary prerequisite to an informed electorate. Seventeen members of the First Congress had been delegates to the Constitutional Convention. It was they and their fellow members of the First Congress who proposed the first ten amendments. As the Supreme Court recently observed, "the First Congress 'was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument.'" Lynch v. Donnelly, 465 U.S. 668, 674, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984) (quoting Myers v. United States, 272 U.S. 52, 174-175, 71 L. Ed. 160, 47 S. Ct. 21 (1926)).
The members of this First Congress did not open their own proceedings to the public. Following the tradition of the colonial assemblies and the Constitutional Convention itself, the Senate met behind closed doors until 1974 and the House followed a similar practice until the War of 1812.*fn11 While both Houses thereafter opened floor deliberations, committee sessions remained closed and were not routinely open to the public until the mid-1970's.*fn12 This Congressional tradition of controlling access to governmental information through politically accountable decision-making remains with us today. The Senate is currently operating under a 1980 resolution that, in the words of its sponsor, provides "for the first time in the Senate's 191-year history, a program for systematic public access to . . . [the Senate's] nonsensitive records . . . ."*fn13 This resolution authorizes the National Archives to give public access to "routine Senate records" 20 years from the date of their creation and to "sensitive records, such as investigative files" 50 years after their creation.*fn14 Each Senate committee retains the right to extend or shorten the access period for its own records.*fn15
The executive branch from the early days of the Republic also followed practices fundamentally inconsistent with an understanding that members of the public had a constitutionally protected right of access to government information. Thomas Jefferson, a strong proponent of public access,*fn16 himself refused to turn over the Burr papers to Chief Justice Marshall, reserving the right to determine what information he must release:
With respect to papers, there is certainly a public and a private side to our offices. To the former belong grants of land, patents for inventions, certain commissions, proclamations, and other papers patent in their nature. To the other belong mere executive proceedings. All nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication. Hence, under our Constitution, in requests of papers, from the legislative to the executive branch, an exception is carefully expressed, as to those which he may deem the public welfare may require not to be disclosed . . . .*fn17
Thus, Jefferson believed that the balance between the public's interest in knowing about the workings of government and the executive's need for secrecy should be struck by the executive. Jefferson's approach is consistent with that of Congress, leaving to the political process ultimate resolution of what and how much information will be deemed confidential.
Our national experience has shown that this reliance upon the political process has not been misplaced and that the people's representatives have not been unresponsive to political pressure when increased public access is needed. The last three decades have produced profound charges in the law of access to government information. The relative recency of these changes may be traced to the greater public need for such information that has accompanied the growth of government at all levels. On the federal level, political pressure for greater access has led to passage of three significant statutes governing release of government-held information: the Freedom of Information Act of 1967,*fn18 the Privacy Act of 1974,*fn19 and the Government in the Sunshine Act of 1976.*fn20 These developments have been matched -- and indeed in some respects exceeded -- on the state level. Over half of the states adopted access laws while Congress wrestled with the terms of the Freedom of Information Act.*fn21 Before 1950, only one state had passed legislation mandating a public right to attend public meetings. In contrast, today all 50 states have their own "government in the sunshine" laws.*fn22 These developments are a clear indication that legislators have been responsive to public demands for increased access to government-held information.*fn23
Thus, decisions as to how much governmental information must be disclosed in order to make democracy work historically have been regarded as political decisions to be made by the people and their elected representatives. Conversely, the judiciary has never asserted the institutional competence to make such decisions. The reason seems apparent. Neither the free speech clause nor the structure of the government described by the Constitution yields any principled basis for deciding which government information must be made available to the citizenry and which need not.
The absence of a principled basis for defining the right to know was noted in Houchins v. KQED, Inc., 438 U.S. 1, 57 L. Ed. 2d 553, 98 S. Ct. 2588 (1978), the Supreme Court case which offers the most helpful guidelines in the current context. In Houchins, the press requested access to county jail facilities, contending that "access to penal institutions is necessary to prevent officials from concealing prison conditions from the voters and impairing the public's right to discuss and criticize the prison system and its administration." 438 U.S. at 8. While the right asserted was a press right of access, the underlying premise of the supporting argument was that press access is necessary to vindicate the public's right to informed self-government. The Chief Justice's characterization of the position of the respondents in Houchins is reminiscent of that of Times Leader here:
From the right to gather news and the right to receive information, they argue for an implied special right of access to government-controlled sources of information. This right, they contend, compels access as a constitutional matter. Respondents suggest further support for this implicit First Amendment right in the language of Grosjean v. American Press Co., 297 U.S. 233, 250, 80 L. Ed. 660, 56 S. Ct. 444 (1936), and Mills v. Alabama, 384 U.S. 214, 16 L. Ed. 2d 484, 86 S. Ct. 1434, 219 (1966), which notes the importance of an informed public as a safeguard against "misgovernment" and the crucial role of the media in providing information . . . .
A majority of the seven judge Court in Houchins held that there is no First Amendment right of press access to government-held information and, in the process, rejected the idea of a First Amendment right of public access. The Chief Justices' plurality opinion noted that the "Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control," 430 U.S. at 9, and that the "undoubted right to gather news . . . affords no basis for the claim that the First Amendment compels others -- private persons or governments -- to supply information." 438 U.S. at 11. Turning from precedent to practicality, the Chief Justice continued:
The respondents' argument is flawed, not only because it lacks precedential support and is contrary to statements in this Court's opinions, but also because it invites the Court to involve itself in what is clearly a legislative task which the Constitution has left to the political processes . . . .
There is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information. Because the Constitution affords no guidelines, absent statutory standards, hundreds of judges would, under the Court of Appeals' approach, be at large to fashion ad hoc standards, in individual cases, according to their own ideas of what seems "desirable" or "expedient." We, therefore, reject the Court of Appeals' conclusory assertion that the public and the media have a First Amendment right to government information regarding the conditions of jails and their inmates and presumably all other public facilities such as hospitals and mental institutions.
438 U.S. at 12, 14 (emphasis supplied).
Justice Stewart was in agreement:
The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government, nor do they guarantee the press any basic right of access superior to that of the public generally. The Constitution does no more than assure the public and the press equal access once government has opened its doors. Accordingly, I agree substantially with what the opinion of THE CHIEF JUSTICE has to say on that score.
438 U.S. at 16 (Stewart, J., concurring in judgment) (emphasis supplied).
Contrary to the suggestion of Times Leader, invocation of "compelling state interest" analysis does not dispel the problem identified by the Chief Justice in Houchins. Recognition of an across-the-board First Amendment right to know would necessarily require the judiciary to "balance" the individual's right of access against competing state interests. Initially at least, the values assigned to the competing secrecy interests*fn24 necessarily would involve standardless decisionmaking.*fn25 As one commentator has pointed out, while the need for military secrecy in time of war may be obvious, how can a court meaningfully value "the less obvious, less dramatic consequences of disclosure of any one of millions of documents that are the stuff of governing and of international relations?"*fn26 Also required would be a multitude of ad hoc decisions about the timing of governmental disclosure.
Adoption of Times Leader's position would ultimately lead the courts to legislate categories of exclusions. Indeed, such an approach would seem to be required to prevent the newfound right to know from being set adrift in a sea of never-ending litigation. Congress fashioned its Freedom of Information Act list of exclusions over a ten-year period. It relied on the interaction of countless political forces and needed no principled basis for fashioning those exclusions. The courts will be forced to fashion their exclusions without the benefit of a similar process. But even if they succeed in some fashion, it would seem that any institutionally feasible categories are likely to be fundamentally at odds with the particularized inquiry ordinarily associated with "compelling state interest, least restrictive means" analysis. If, for example, as the Court held in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613, 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982), Massachusetts cannot foreclose public access to sex offense trials involving minors without a particularized inquiry concerning the specific victim and his or her personal situation, can it deny access to inter-agency and intra-agency memoranda without a particularized and judicially reviewable inquiry into the value of withholding each particular memorandum?
Houchins retains its precedential value. Initially, it should be pointed out that Houchins was not an aberration. There are a number of other cases which similarly indicate that the First Amendment guarantees no general access to government information. See, e.g., Zemel v. Rusk, 381 U.S. 1, 14 L. Ed. 2d 179, 85 S. Ct. 1271 (1965); Branzburg v. Hayes, 408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972); Pell v. Procunier, 417 U.S. 817, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974); and Saxbe v. Washington Post, 417 U.S. 843, 41 L. Ed. 2d 514, 94 S. Ct. 2811 (1974). It was this caselaw that led Justice Stewart to observe in 1975:
There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy . . . . The public's interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.
The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolution, at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American society.
Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975).
Not until Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), did the Supreme Court recognize a First Amendment right of access to some government-controlled information. Richmond Newspapers, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982) and Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819 (1984) (Press-Enterprise I) comprise the trilogy of Supreme Court precedents upon which Times Leader relies as marking a one hundred and eighty degree turn in First Amendment jurisprudence. While these cases clearly represent a significant development, they do not expressly or impliedly overrule Houchins. These cases hold no more than that the government may not close government proceedings which historically have been open unless public access contributes nothing of significant value to that process or unless there is a compelling state interest in closure and a carefully tailored resolution of the conflict between that interest and First Amendment concerns.
Richmond Newspapers held that the public has a First Amendment right of access to criminal trials. Globe Newspaper held that a state statute closing all trials involving minor victims of sexual offenses violated this right. And Press-Enterprise I found that the First Amendment guarantee of an open trial extends to voir dire proceedings. Each of these cases applied the same approach for determining whether there was a First Amendment right of access to various aspects of the criminal trial. In the words of Justice Brennan, "resolution of First Amendment public access claims in individual cases must be strongly influenced by the weight of historical practice and by an assessment of the specific structural value of public access in the circumstances." Richmond Newspapers, 448 U.S. at 597-98 (Brennan, J., concurring in judgment). These words were endorsed by Chief Justice Burger in Globe Newspaper, 457 U.S. at 614 (Burger, C.J., dissenting), and there can be little doubt that this two tier analysis currently commands the allegiance of a majority of the Court.
This analysis may not be separated from its historical moorings, for the role of history in the access determination is integral. In United States v. Smith, 776 F.2d 1104 (3d Cir. 1985), we analyzed the various opinions in Richmond Newspapers and recognized that a majority of the Court subscribed to an analysis that consisted of both an historical and a functional (or structural) strand. We further noted that the Court's emphasis on history had been reaffirmed in Globe Newspaper and Press-Enterprise I.
More recently, in First Amendment Coalition v. Judicial Inquiry & Review Board, 784 F.2d 467 (3d Cir. February 14, 1986), we once again reviewed these Supreme Court precedents and ...