No. 80-1436
Argued: December 2, 1981Decided: February 24, 1982
Held:
- 1. The requested information in No. 80-1436 is not subject to disclosure under the FOIA. Pp. 352-359.
- (a) To stimulate public cooperation necessary for an accurate census – providing a basis for apportioning Representatives among the states in Congress, serving an important function in the allocation of federal grants to states based on population, and also providing important data for Congress and ultimately for the private sector – Congress has provided assurances that information furnished by individuals is to be treated as confidential. Title 13 U.S.C. 8(b) and 9(a) explicitly provide for nondisclosure of certain census data, and no discretion is provided to the Census Bureau on whether or not to disclose such data. Thus, 8(b) and 9(a) qualify as withholding statutes under Exemption 3 of the FOIA. Pp. 353-355.
- (b) The unambiguous language of the confidentiality provisions of the Census Act – focusing on the “information” or “data” that constitutes the statistical compulation – as well as the Act’s legislative history, indicates that Congress contemplated that raw data reported by or on behalf of individuals, not just the identity of the individuals, was to be held confidential and not available for disclosure. The master address list sought by Essex County is part of the raw census data intended by Congress to be protected under the Act. And under the Act’s clear language, it is not relevant that municipalities seeking data will use it only for statistical purposes. Pp. 355-359.
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- 2. Nor is the requested information in No. 80-1781 subject to disclosure under the discovery provisions of the Federal Rules of Civil Procedure. Under Rule 26(b)(1), if requested information is privileged, it may be withheld even if relevant to the lawsuit and essential to the establishment of plaintiff’s claim. A privilege may be created by statute, and the strong policy of nondisclosure under the confidentiality provisions of the Census Act indicates that Congress intended such provisions to constitute a “privilege” within the meaning of the Federal Rules. Pp. 360-362.
No. 80-1436, 636 F.2d 1210, reversed; No. 80-1781, 644 F.2d 844, affirmed.
BURGER, C. J., delivered the opinion for a unanimous Court.
Elliott Schulder argued the cause for petitioners in No. 80-1436 and respondents in No. 80-1781. With him on the briefs were Solicitor General Lee, Acting Solicitor General Wallace, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Geller, Leonard Schaitman, Michael Kimmel, and John Cordes.
George J. Cerrone, Jr., argued the cause for petitioners in No. 80-1781. With him on the briefs was Max P. Zall.
David H. Ben-Asher argued the cause and filed a brief for respondent in No. 80-1436.Fn
Fn [455 U.S. 345, 347] Vilma S. Martinez and Morris J. Baller filed briefs for the Mexican American Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance in No. 80-1436 and reversal in No. 80-1781. John E. Flaherty, Jr., and Malcolm J. Hall filed a brief for Plaintiffs in MDL-444, In re 1980 Decennial Census Adjustment Litigation, as amici curiae urging reversal in No. 80-1781. Robert Abrams, Attorney General, Frederick A. O. Schwarz, Jr., Robert S. Rifkind, Peter Bienstock, and Allen G. Schwartz filed a brief for the State of New York et al. as amici curiae.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to determine whether lists of addresses collected and utilized by the Bureau of the Census are exempt from disclosure, either by way of civil discovery or the Freedom of Information Act, under the confidentiality provisions of the Census Act, 13 U.S.C. 8 and 9.
I
Under Art. I, 2, cl. 3, of the United States Constitution, responsibility for conducting the decennial census rests with [455 U.S. 345, 348] Congress. 1 Congress has delegated to the Secretary of Commerce the duty to conduct the decennial census, 13 U.S.C. 141; the Secretary in turn has delegated this function to the Bureau of the Census. 13 U.S.C. 21.
The 1980 enumeration conducted by the Bureau of the Census indicated that Essex County, N. J., which includes the city of Newark, and Denver, Colo., among other areas, had lost population during the 1970’s. This information was conveyed to the appropriate officials in both Essex County and Denver. Under Bureau procedures a city has 10 working days from receipt of the preliminary counts to challenge the accuracy of the census data. 2 Both Essex County and Denver challenged the census count under the local review procedures. Both proceeded on the theory that the Bureau had erroneously classified occupied dwellings as vacant, and both sought to compel disclosure of a portion of the address lists used by the Bureau in conducting its count in their respective jurisdictions. [455 U.S. 345, 349]
A
- BALDRIGE v. SHAPIRO (No. 80-1436)
The Essex County Executive filed suit in the United States District Court for the District of New Jersey to compel the Bureau to release the “master address” register under the Freedom of Information Act (FOIA), 5 U.S.C. 552. 3 The master address register is a listing of such information as addresses, householders’ names, number of housing units, type of census inquiry, and, where applicable, the vacancy status of the unit. The list was compiled initially from commercial mailing address lists and census postal checks, and was updated further through direct responses to census questionnaires, pre- and post-enumeration canvassing by census personnel, and in some instances by a cross-check with the 1970 census data. The Bureau resisted disclosure of the master address list, arguing that 13 U.S.C. 8(b) and 9(a) prohibit disclosure of all raw census data pertaining to particular individuals, including addresses. The Bureau argued that it therefore could lawfully withhold the information under the FOIA pursuant to Exemption 3, which provides that the FOIA does not apply where information is specifically exempt from disclosure by statute. 5 U.S.C. 552(b) (3).
The District Court concluded that the FOIA required disclosure of the requested information. The court began its analysis by noting that public policy favors disclosure under the FOIA unless the information falls within the statutory exemptions. The District Court concluded that the Census Act did not provide a “blanket of confidentiality” for all census materials. Rather, the confidentiality limitation is [455 U.S. 345, 350] “solely to require that census material be used in furtherance of the Bureau’s statistical mission and to ensure against disclosure of any particular individual’s response.” App. to Pet. for Cert. 10a. The court noted that Essex County did not seek access to individual census reports or information relative to particular individuals, but sought access to the address list exclusively for statistical purposes in conjunction with the Bureau’s own program of local review. In addition, the Secretary is authorized by the Census Act to utilize county employees if they are sworn to observe the limitations of the statute. The District Court concluded that the Bureau’s claim of confidentiality impeded the goal of accurate and complete enumeration. Finally, the District Court found that the information sought was not derived from the questionnaires received, but rather from data available prior to the census. The District Court ordered the Bureau to make available the address register of all property in the county, with the proviso that all persons using the records be sworn to secrecy. 4 The United States Court of Appeals for the Third Circuit affirmed for the reasons stated by the District Court. App. to Pet. for Cert. 1a. Judgment order reported at 636 F.2d 1210 (1980).
B
- McNICHOLS v. BALDRIGE (No. 80-1781)
The city of Denver, through its officials, filed suit in the United States District Court for the District of Colorado seeking a preliminary injunction to require the Bureau to co-operate with the city in verifying its vacancy data. 5 The [455 U.S. 345, 351] District Court did not rule on the preliminary injunction, but instead focused on whether the city of Denver was entitled to the vacancy information contained in the updated master address registers maintained by the Bureau. The District Court granted the city of Denver’s discovery request for this information. The court concluded that the city should have access to the information because without the address list the city was denied any meaningful ability to challenge the Bureau’s data. In light of what it deemed the important constitutional and statutory rights involved, the District Court concluded that the purposes of 9 of the Census Act could be maintained without denying the city the right of discovery. The District Court entered a detailed order to protect the confidentiality of the information.