UNITED STATES DEPARTMENT OF DEFENSE, PETITIONER V. NATIONAL SECURITY ARCHIVE No. 89-1204 In The Supreme Court Of The United States October Term, 1989 The Acting Solicitor General, on behalf of the United States Department of Defense, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statutory and regulatory provisions involved Statement A. The statutory and regulatory scheme B. The facts of this case Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-15a) is reported at 880 F.2d 1381. The opinion of the district court (App., infra, 16a-27a) is reported at 690 F. Supp. 17. JURISDICTION The judgment of the court of appeals (App., infra, 28a-29a) was entered on July 28, 1989, and the petition for rehearing was denied on September 26, 1989 (App., infra, 30a). On December 19, 1989, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including January 24, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED 1. The Freedom of Information Act provides in pertinent part (5 U.S.C. 552(a)(4)(A)): (i) In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies. (ii) Such agency regulations shall provide that -- (I) fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use; (II) fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or non-commercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and (III) for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication. (iii) Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. 2. The Uniform Freedom of Information Act Fee Schedule and Guidelines promulgated by the Office of Management and Budget, and the regulations of the Department of Defense, both provide in pertinent part (5 C.F.R. 1303.30(j); 32 C.F.R. 286.33(e)(7)(i)): The term "representative of the news media" refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term "news" means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of "news") who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. * * * QUESTION PRESENTED Whether respondent, which seeks government records under the Freedom of Information Act (FOIA), 5 U.S.C. 552, to include in its private repository of documents concerning the foreign relations, defense and intelligence policy of the United States, is a "representative of the news media" and therefore exempt under 5 U.S.C. 552(a)(4)(A)(ii) from the fees ordinarily charged a FOIA requester for the costs incurred by the agency in searching for documents. STATEMENT Respondent National Security Archive is a private repository of records relating to the national defense, foreign relations and intelligence policy of the United States. It has filed several thousand (often wide-ranging) requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552, to establish and build its collection. The court of appeals held that respondent is exempt from the fees ordinarily charged a FOIA requester for the costs incurred in searching for documents, concluding that respondent qualifies for special treatment under a provision that exempts a "representative of the news media" from such fees. 5 U.S.C. 552(a)(4)(A)(ii). A. THE STATUTORY AND REGULATORY SCHEME 1. Prior to 1986, the FOIA authorized an agency to charge fees to requesters for the costs of searching for and duplicating documents, but further provided that the fees should be waived or reduced whenever it was "in the public interest because furnishing the information can be considered as primarily benefiting the general public." 5 U.S.C. 552(a)(4)(A) (1982). In the Freedom of Information Reform Act of 1986, /1/ Congress amended the FOIA fee provisions. Subparagraph (i) of the amended 5 U.S.C. 552(a)(4)(A) directs each federal agency to promulgate regulations, after notice and an opportunity for public comment, specifying the schedule of fees applicable to the processing of requests and establishing procedures and guidelines for determining when such fees should be waived or reduced. Each agency's schedule must "conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies." 5 U.S.C. 552(a)(4)(A)(i). Subparagraph (ii) of Section 552(a)(4)(A) requires the agency regulations to establish different fees schedules for each of three categories of requests. Category (I) consists of requests made for commercial use, for which fees may be assessed not only for document search and duplication, but also for reviewing documents to determine whether they will be released. Category (II), at issue here, consists of requests made by "educational institution(s)," "non-commercial scientific institution(s)," and "representative(s) of the news media." Entities in this most favored category may be charged fees only for duplication, not for search or review of documents (unless they are sought for a commercial use). Category (III) consists of any other request, for which, as under prior law, fees may be assessed for document search and duplication, but not review. 5 U.S.C. 552(a)(4)(A)(ii)(I)-(III). The FOIA Reform Act of 1986 also revised the standard for granting an individual waiver or reduction of fees. Under the 1986 amendments, documents shall be furnished without any charge or at a reduced charge "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. 552(a)(4)(A)(iii). 2. In March 1987, pursuant to 5 U.S.C. 552(a)(4)(A)(i), OMB published in final form its "Uniform Freedom of Information Act Fee Schedule and Guidelines" for agencies to use in preparing their own fee regulations. 52 Fed. Reg. 10,012. The OMB guidelines define the categories of requests covered by the new fee provisions, 5 C.F.R. 1303.30(g)-(j), and prescribe the method for calculating the fees applicable to each. 5 C.F.R. 1303.40-1303.60. The Department of Defense (DoD) subsequently issued its FOIA fee regulations, which conform to the OMB guidelines. 52 Fed. Reg. 25,977 (1987), codified at 32 C.F.R. 286.33. The OMB guidelines and DoD regulations both define "representative of the news media" to mean "any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public." 5 C.F.R. 1303.30(j) and 32 C.F.R. 286.33(e)(7)(i), quoted at page 3, supra. And both define "news" to mean "information that is about current events or that would be of current interest to the public," and identify as examples of news media entities "television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of 'news') who make their products available for purchaser or subscription by the general public." Ibid. B. THE FACTS OF THIS CASE 1. In materials submitted to DoD, respondent National Security Archive described itself as a "public interest, scholarly research institute and library" in Washington, D.C. C.A. App. 42, 80. Its purpose is to "identify, obtain, house, index, analyze, and disseminate contemporary declassified and unclassified United States government documents pertaining to foreign, defense, intelligence and national security policy." Id. at 21. The documents are obtained in large part through requests under the FOIA. Id. at 22, 24-25, 43, 80. Respondent serves "as a traditional repository for the documents," id. at 22, which it will "make available to scholars, journalists, congressional staffs, present and former public officials, other public interest organizations and the general public" (id. at 42). "To facilitate user access to documents, the Archive's primary activity is the creation of detailed cross-referenced indices, other finding aids, and a sophisticated computerized retrieval system." Ibid. Respondent also plans to organize its records into document "sets" covering discrete subject matters. Ibid. Although respondent currently receives grants from private foundations (id. at 21), it proposes that in the future, "(t)he activities of the Archive will be largely supported by income raised from sales of the indices and microform copies of major sets of documents to research libraries and other identified client groups." Id. at 22; see also id. at 23, 32-36. Material submitted to DoD stated that respondent would charge approximately $1,000 for each document set and $350 for each index. Id. at 34. /2/ 2. After passage of the FOIA Reform Act of 1986, respondent applied to DoD for the most favored fee status, under which it would be charged only for copying, not for search or review of documents. 5 U.S.C. 552(a)(4)(A)(ii)(II). Respondent contended that it qualified for that status as an "educational institution" or a "representative of the news media." DoD found that respondent did not qualify on either basis, observing that respondent "has asserted many times * * * that it is something different -- 'a nonprofit public interest scholarly research institute and library.'" C.A. App. 146 (quoting id. at 80). As relevant here, DoD determined that respondent is not a "representative of the news media" because it is not "organized and operated to publish or broadcast news to the public," as required by DoD regulations, 32 C.F.R. 286.33(e)(7)(i). C.A. App. 148-150. /3/ DoD reasoned that a document library does not qualify as a member of the news media merely because it makes documents available to the public and disseminates them, because "(t)he media are those who themselves undertake to publish information to the general public (or some segment thereof)" and because "such organizations do not simply collect and organize raw documentary materials for someone else's use -- they report the news." Id. at 149. Moreover, here, "the activities in which (respondent) engages to disseminate directly appear to be clearly secondary to its principal mission as a private document library." Ibid. DoD found its conclusion to be supported by the plain meaning of the statutory term "news media," and by Senator Hatch's explanation that (a) the term "media" is to be given its "'common meaning,'" and (b) a mere "'disseminator of public information'" does not qualify, since "'information vendors, data brokers, and other second-hand disseminators of documents . . . would hardly qualify under any reasonable construction of the term "media."'" C.A. App. 151, 152, quoting 132 Cong. Rec. S16,505 (daily ed. Oct. 15, 1986). 3. In this action for judicial review, the district court sustained DoD's decision. App., infra, 16a-27a, 32a. /4/ In light of respondent's description of itself as a "research institute and library" that "make(s) available government information," the court found "no basis to disagree with DoD's determination" that respondent "is neither an education(al) institution nor a representative of the news media within the meaning of DoD's regulations." Id. at 19a, 20a. In fact, the court noted that respondent "does not contest DoD's determination" under those regulations. Id. at 20a. The court rejected respondent's contention that it should review DoD's action without regard to the regulations, because to do so "would render both the regulations and Congress's direction to promulgate them meaningless." Id. at 20a n.2. It explained that where, as here, "Congress leaves gaps in a program by authorizing the agency to adopt implementing regulations, it has delegated to the agency the power to fill those gaps." Ibid., citing Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 843-844 (1984). The district court also rejected respondent's contention that DoD's regulations are inconsistent with congressional intent. App., infra, 21a-26a. Because Congress did not define the relevant terms, the court explained, it left that task to OMB and the agencies, and the court found the definitions in the OMB guidelines and DoD regulations to be reasonable and consistent with congressional intent. Id. at 21a. "If anything," the court observed, "the legislative history reveals a clear congressional decision to deny status waivers to entities like (respondent)," because Congress deleted a provision that would have granted preferred status to any "'nonprofit group that intends to make the information available' 'to the news media, any branch or agency of Federal, State or local government, or the general public.'" Id. at 21a-23a & n.3, quoting H.R. 6414, 98th Cong., 2d Sess. Section 4 (1984). Thus, in the court's view, respondent was "trying to obtain a status waiver through the judicial process after entities like it were denied such waivers in the legislative process." App., infra, 25a. The court further reasoned that mere dissemination of information is insufficient to qualify an entity as a "representative of the news media," because even the legislative history cited by petitioner (which in any event conflicted with the statements of Senator Hatch) "contemplate(s) some sort of regular publication, broadcast, or other transmission of news." Id. at 24a. Because respondent's functions were not of that character and were not "'similar to that of newspapers and broadcasters,'" the court found that it could not be included in the preferred category. Ibid. (quoting 132 Cong. Rec. H9464 (daily ed. Oct. 8, 1986) (joint analysis of Reps. English and Kindness)). 4. The court of appeals affirmed the district court's holding that respondent does not qualify as an "educational institution" but reversed its holding that respondent does not qualify as a "representative of the news media." App., infra, 1a-15a, 28a-29a. In finding that the DoD regulations reasonably construe the term "educational institution" (id. at 4a-9a), the court noted that the ordinary meaning of that term is "school." Id. at 5a. And like the district court, the court of appeals found it significant that Congress had deleted the language that would have granted favored fee status to groups that intend to make the information available to the public, since respondent's interpretation of "educational institution" to include its own activity in that regard would effectively reintroduce the deleted provision. Id. at 6a-7a. Finally, the court noted that the sponsors' floor statements were in conflict on the significance of that deletion. Id. at 7a-8a. Because the legislators "were apparently content to vote without resolving the issue, thus punting the issue to the courts," the court chose to "fall back upon" the conventional rule that a change in statutory language is not without effect. Id. at 9a. And because the sponsors were in conflict, the court could not "rely upon any of their statements to supply a meaning that (it did) not find on the face of the statute when read as ordinary language." Ibid. By contrast, when considering respondent's alternative claim that it qualifies for preferred fee status as a "representative of the news media" (App., infra, 9a-14a), the court of appeals declined to attach the same significance to the ordinary meaning of the statutory text, to Congress's deletion of the provision that would have applied directly to respondent's activities, or to the conflicting statements of the sponsors. The court instead relied on floor statements by several Members of Congress that it found to be inconsistent with those indicia of congressional intent and with the interpretation embodied in the OMB guidelines and DoD regulations. Thus, rejecting the government's argument that the statutory term "representative of the news media" must be tied to the "news media" as commonly understood, the court held that respondent's plans to compile expensive sets of documents and accompanying indices and sell them to libraries, scholars and others for research purposes gave it the same status as a newspaper or radio or television station -- without regard to whether the substance of the documents is "news" or whether the offering of such materials for sale is a recognized "medium" for the communication of news. Id. at 11a-13a. /5/ REASONS FOR GRANTING THE PETITION The court of appeals has seriously misconstrued the fee provisions of the Freedom of Information Act. Respondent is not a member of the "news media" in any accepted meaning of that term. As its name makes clear, respondent is something quite different: it is an "Archive" -- a private repository -- of government documents pertaining to the national security of the United States. Respondent therefore is not entitled to the favored fee status that Congress granted to "representative(s) of the news media," which regularly publish or broadcast news about current events or events of current interest to the public at large, or to a significant portion of the public. The court of appeals' contrary holding conflicts with the plain meaning of the statutory language and with OMB guidelines and DoD regulations entitled to substantial deference under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), and it fails to respect Congress's decision to delete a provision that would have specifically applied to respondent's activities of making information available to the public. Respondent has already filed several thousand FOIA requests with a variety of government agencies, including the Department of Defense, the Department of State, the Central Intelligence Agency (CIA), and the National Security Council (NSC), in order to establish and build its private collection of government records. Those requests are often wide-ranging in nature, precisely because respondent seeks comprehensive documentation of entire subject areas of the foreign relations, national defense, and intelligence policy of the United States. Respondent of course has the right to file FOIA requests and to obtain nonexempt documents. But like other FOIA requesters, respondent must reimburse the government for the costs incurred by the agency in searching for (and copying) the documents it seeks in amassing its collection. In enacting the 1986 amendments, Congress specifically intended to require FOIA requesters to pay their own way by paying the search costs imposed on the agency, unless the exception for the "news media" and other specified requesters applied. The court of appeals has expanded the scope of that exception far beyond the limits Congress imposed, by including entities that do not publish "news" in the ordinary sense and do not utilize the "media" through which news is ordinarily communicated. Because the decision below therefore opens a sizeable loophole in the FOIA fee structure for respondent and similar entities seeking to amass government records and broker them to third parties, it is of substantial practical importance in the administration of the FOIA. It will deprive the United States of reimbursement for the many hours of employees' time consumed in searching for documents in response to each of the FOIA requests filed and yet to be filed by respondent and others similarly situated. But in addition, the decision below, if allowed to stand, will remove the usual and salutary incentive for requesters such as respondent to fashion their requests economically. This impact will be especially acute in the case of respondent and similar entities that may follow its lead in other areas of government activity, because their very purpose is to establish complete collections of government documents on a program-wide basis. The decision below also will redound to the detriment of other FOIA requesters, because agency responses to their requests will inevitably be delayed by the reallocation of scarce resources to the voluminous and wide-ranging requests filed by entities such as respondent. Review by this Court therefore is warranted. A. The court of appeals' decision is inconsistent with the plain meaning of the statutory text, the administrative interpretation of that text, and Congress's decision to delete a provision that would have specifically applied to respondent's activities. It also improperly subordinates these authoritative sources of statutory interpretation in favor of ambiguous floor statements by several Members of Congress that are themselves in conflict with other floor statements. For these reasons, the ruling below cannot be squared with basic principles of statutory construction and administrative law. 1. When a court reviews an agency's construction of the statute it administers, the first question is whether Congress "has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-843. However, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843; Mead Corp. v. Tilley, 109 S. Ct. 2156, 2162 (1989); NLRB v. Food & Commercial Workers, 484 U.S. 112, 123 (1987). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to elucidate the statutory provision by regulation, which is given controlling weight unless it is "'arbitrary, capricious, or manifestly contrary to the statute.'" Atkins v. Rivera, 477 U.S. 154, 162 (1986), quoting Chevron, 467 U.S. at 843-844. Even where the delegation to the agency is only implicit, the court may not substitute its own construction for a reasonable construction by the agency. Chevron, 467 U.S. at 844. 2. In the Freedom of Information Reform Act of 1986, Congress reaffirmed the general rule that FOIA requesters must pay fees to reimburse the government for (at least) the costs of searching for and copying documents. The 1986 Act created a single exception to that rule for certain requesters, which are exempted from search fees. This favored fee status is available to, inter alia, "a representative of the news media." 5 U.S.C. 552(a)(4)(A)(ii)(II). The FOIA itself does not define the quoted term. Instead, that task is left to OMB and each agency, in promulgating the implementing guidelines and regulations required by 5 U.S.C. 552(a)(4)(A)(i). See Media Access Project v. FCC, 883 F.2d 1063, 1069 (D.C. Cir. 1989). The OMB guidelines and DoD regulations define the statutory term "representative of the news media" to mean "any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public," listing as examples "television or radio stations broadcasting to the public at large, and publishers of periodicals * * * who make their products available for purchase or subscription by the general public." 5 C.F.R. 1303.30(j); 32 C.F.R. 286.33(e)(7)(i). Respondent unquestionably fails to qualify under these regulatory standards, because it is not an "entity that is organized and operated to publish or broadcast news to the public." 5 C.F.R. 1303.30(j); 32 C.F.R. 286.33(e)(7)(i). The district court agreed, observing that respondent did not contest DoD's ruling that it is not exempt from search fees under DoD regulations. App., infra, 20a. The court of appeals likewise did not take issue with the determination that respondent fails to qualify as a "representative of the news media" under the governing regulations. Id. 3a-4a. It therefore should have affirmed that determination, because, as we shall now explain, the statutory construction embodied in the regulations is, at the very least, reasonable, and is therefore binding on the courts. a. "'(T)he starting point for interpreting (the) statute is the language of the statute itself.'" Hallstrom v. Tillamook County, 110 S. Ct. 304, 308 (1989), quoting CPSC v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). In this case, the statute on its face excludes respondent from the special fee status, because the ordinary meaning of the phrase "representative of the news media" does not encompass such an entity. The term "media" denotes "the means of communication, such as radio and television, newspapers, and magazines, that reach or influence people widely." Random House Dictionary of the English Language 1193 (2d ed. 1987). And the term "news" denotes "a report of a recent event; intelligence; information," and the "presentation of a report on recent or new events in a newspaper or other periodical or on radio or television." Id. at 1295. Accord, Webster's Third New International Dictionary 1524 (1986) ("news" means "a report of a recent event"; "what is reported in a newspaper, news periodical, or news broadcast"; what is "suitable for news copy"); id. at 1403 ("medium" means "a channel, method, or system of communication"). Compare John Doe Agency v. John Doe Corp., 110 S. Ct. 471, 476 (1989) (construing "plain words" of the FOIA). The foregoing definitions distinguish a member of the "news media" from an ordinary book publisher, even one that publishes books that provide in-depth analysis of historical events, including those of recent origin. Yet respondent does not even engage in the latter activity. Aside from its primary function of assembling materials for its repository and making them available to the public at one location, all respondent does is (1) organize and publish verbatim certain documents that furnish raw material for discussion and analysis of events by others, and (2) compile indices and other finding aids to facilitate access to that raw material. Those are functions that might be performed by any library or repository of documents. Nor do the rather ponderous document sets and indices that respondent plans to sell remotely resemble the newspapers, magazines, or radio and television broadcasts that are typically encompassed by the term "news media." The sets and indices will not be released on a regularly scheduled basis; they will not be broadly disseminated directly to the public at large or to a substantial subset of the public, but instead will be sold to libraries and others for purposes of research; /6/ the price of the materials indicates they are primarily for research purposes and distinguishes them from the reasonably affordable channels for receiving genuine "news"; most of the documents or indices will not themselves be of the broad and immediate public interest typically associated with the news or be readily comprehensible by typical consumers of the news; and respondent does not exercise the sort of editorial judgment ordinarily required of the media -- namely, the reviewing, digesting, and condensing of raw information to make it understandable to the public. In short, whatever may be the precise scope of the statutory term "representative of the news media" in marginal applications, it is clear that respondent falls beyond its outer limits. b. The statutory text of course does not stand alone. In subparagraph (i) of 5 U.S.C. 552(a)(4)(A), Congress directed OMB and the agencies to promulgate implementing guidelines and regulations, after notice and comment. Because subparagraph (ii) requires the agency regulations to establish different fees for each of three categories of requests, the express directive in subparagraph (i) to issue regulations specifying the schedule of fees necessarily subsumes the power to define more precisely the categories to which those fees are applicable. The DoD regulations at issue here therefore should be sustained unless they are manifestly contrary to the Act. Chevron, 467 U.S. at 844. Even if the regulations do not have legislative effect, they are, at a minimum, entitled to substantial deference and therefore are controlling if they rest on a "reasonable interpretation" of the Act. Ibid. Because the meaning given the statutory term "representative of the news media" by the OMB guidelines and DoD regulations is essentially identical to the plain meaning of that term (see 52 Fed. Reg. 10,014-10,015 (1987)), it clearly is "sufficiently rational" to bind the courts. Chemical Manufacturers Ass'n v. NRDC, Inc., 470 U.S. 116, 125 (1985). The DoD regulations are entitled to special weight here for two additional reasons. First, they represent a contemporaneous construction of the fee provisions of the Freedom of Information Reform Act of 1986 by those "'charged with the responsibility of setting (their) machinery in motion'" (Aluminum Co. of America v. Central Lincoln Peoples' Utility Dist., 467 U.S. 380, 390 (1984)). Second, because DoD's regulations conform to the government-wide guidelines issued by OMB pursuant to its responsibility to establish a uniform fee schedule under 5 U.S.C. 552(a)(4)(A)(i), and because all government agencies have coordinated their regulatory activities and conformed to OMB guidelines to ensure consistency throughout the government, /7/ the DoD regulations embody "an interpretation followed by all agencies of the Government." United States v. Bergh, 352 U.S. 40, 46 (1956). The court of appeals should not have so lightly disregarded this considered judgment by responsible officials throughout the Executive Branch. c. Although the court of appeals did not find it self-evident precisely what the term "representative of the news media" does cover (App., infra, 9a), it did not deny that the ordinary meaning of that phrase and the regulations implementing it do not cover respondent. The court of appeals instead based its decision on several statements by individual legislators. Generally, however, the statutory language must control, "(a)bsent a clearly expressed legislative intention to the contrary" (CPSC v. GTE Sylvania, Inc., 447 U.S. at 108); see United States v. Weber Aircraft Co., 465 U.S. 792, 798 (1984). Here, the legislative history contains no such "clearly expressed" intention. The Freedom of Information Reform Act of 1986 was added as a floor amendment to the omnibus anti-drug legislation near the close of a legislative session, and the FOIA fee provisions therefore were enacted without the benefit of committee reports or equivalent statements of consensus views that ordinarily accompany such legislation. For this reason, it is not surprising that, in some respects, the legislative history of the fee provisions "tugs in more than one direction." See Abourezk v. Reagan, 785 F.2d 1043, 1054 (D.C. Cir. 1986), aff'd, 484 U.S. 1 (1987). Those cross-currents in what individual Members said, however, should not obscure what Congress did. When the fee provisions were first before the Senate in 1986, two changes were made in the language of the original House bill. First, the preferred fee section was revised to remove language that specifically included those who sought information "by or on behalf of" others. 132 Cong. Rec. 26,770 (1986) (remarks of Sen. Hatch). The purpose of this deletion was "to limit the breadth of the categorical waiver provision to those requesters who seek Government records for their own scholarly or media work" (ibid.), and its effect was to preclude entities like respondent from obtaining preferred fee status by serving as a "middle man" or broker of information that will actually be used by others. Second, the Senate amendment omitted language in the original House bill that would have granted preferred fee status to any "nonprofit group that intends to make the information available to the news media, any branch or agency of Federal, State or local government, or the general public." 132 Cong. Rec. 26,770 (1986) (remarks of Sen. Hatch); see pages 9-10, supra. This language would have specifically applied to respondent's activities of making the information it obtains from the government available to the news media and the public. But "'(f)ew principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.'" INS v. Cardoza-Fonseca, 480 U.S. 421, 442-443 (1987), quoting Nachman Corp. v. PBGC, 446 U.S. 359, 392-393 (1980) (Stewart, J., dissenting); see also Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974). Thus, Congress's deletion of this provision strongly reinforces the interpretation of the statutory text that is indicated by its plain meaning, under which respondent falls outside the special exemption. The significance of this deletion, standing alone, is confirmed by Senator Hatch's contemporaneous explanation that it was made "to clarify that organizations seeking to establish private repositories of public records shall not qualify for a waiver." 132 Cong. Rec. 26,770 (1986). He continued (ibid.): These groups purport to act as an intermediary between the Government and requesters in seeking records that requesters could seek directly from the Government. This type of private library of public documents, whether operated for profit or not, should not qualify for a waiver under the standards of this bill. When the 1986 amendments were again before the Senate to consider technical amendments, Senator Hatch again stated (id. at S16,505 (daily ed. Oct. 15, 1986)): (T)hese provisions are not intended to permit a fee waiver to any requester simply on the basis of his status as a disseminator of public information. * * * (I)nformation vendors, data brokers, and other second-hand disseminators of documents * * * would hardly qualify under any reasonable construction of the term "media" * * * . Accordingly, as the district court observed, respondent "is trying to obtain a status waiver through the judicial process after entities like it were denied such waivers in the legislative process." App., infra, 25a. The court of appeals believed, however, that the effect of Congress's deletion of the statutory language just discussed, and Senator Hatch's explanation of that deletion, were overcome by the statements of several Members of Congress that, in its view, pointed in a different direction. In particular, the court cited general statements that the phrase "representative of the news media" is to be "broadly interpreted" (132 Cong. Rec. 27,190 (1986) (remarks of Sen. Leahy)), that any organization "which regularly publishes or disseminates information to the public" should qualify (ibid.), and that "(a) request by a reporter or other person affiliated with a newspaper, magazine, television or radio station, or other entity that is in the business of publishing or otherwise disseminating information to the public qualifies under this provision" (id. at H9463 (daily ed. Oct. 8, 1986) (joint analysis of Reps. English and Kindness)). Based on these passages, the court construed the Act to confer preferred fee status on any entity that engages in some sort of "publishing" or "dissemination" of information. App., infra, 11a-12a. When read in context, however, the references to publishing or dissemination by Senator Leahy and Representatives English and Kindness appear to refer to disseminations of the sort made by "a newspaper, magazine, television or radio station," which are expressly mentioned in the same passages -- i.e., direct disseminations of news by entities organized and operated for that purpose. There is no suggestion in the passages quoted by the court of appeals that a private repository of government records, such as respondent, would qualify for a blanket exemption from search fees solely because it occasionally sells records from its collection in the form of document sets. Indeed, the Members viewed the touchstone to be whether the organization's dissemination functions are "similar to that of newspapers and broadcasters." 132 Cong. Rec. H9464 (daily ed. Oct. 8, 1986) (joint analysis of Reps. English and Kindness). Moreover, as the district court pointed out, "(t)he remarks cited by (respondent), even when they refer to non-traditional media, still seem to contemplate some sort of regular publication, broadcast, or other transmission of news." App., infra, 24a (emphasis added). Respondent's publications do not have that character. Even if the floor statements cited by the court of appeals were thought to lend some support to respondent's position, such statements by individual legislators, including those involved in developing legislation, are not necessarily an authoritative expression of the intent of Congress as a whole. See Weinberger v. Rossi, 456 U.S. 25, 35 (1982); Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979). That is especially so where, as here, the expressions (as understood by the court of appeals) are inconsistent with the plain meaning of the statutory text, implementing regulations, and Congress's deletion of statutory language that would have specifically covered entities that make information available to the public. Moreover, the Members whose statements the court of appeals relied upon apparently did not favor that deletion. It is axiomatic that the statements of opponents of a measure (here, the deletion of the language) are less authoritative than those of the proponent. Bankamerica Corp. v. United States, 462 U.S. 122, 139 (1983); NLRB v. Fruit & Vegetable Packers, 377 U.S. 58, 66 (1964); compare North Haven Board of Education v. Bell, 456 U.S. 512, 526-527 (1982). /8/ If we nevertheless assume that those statements have the meaning and force that the court of appeals attached to them, the fact remains that they conflict with the views of another principal sponsor, Senator Hatch. Thus, at most, the floor statements to which the court of appeals gave dispositive weight are contradictory, and they cannot override the other, compelling indicia of legislative intent. B. The decision of the court of appeals creates a substantial loophole in the graduated fee schedules that Congress mandated in the Freedom of Information Reform Act of 1986. A number of adverse consequences will follow if that decision is allowed to stand. The Federal Treasury will be forced to subsidize respondent's efforts to establish a comprehensive private repository of government records about the national security of the United States, because the government, not respondent, will bear the expenses incurred by numerous federal agencies in undertaking potentially limitless searches for documents to be added to respondent's collection. More broadly, the unwarranted expansion of the exemption from search fees fashioned by the court below removes a meaningful and reasonable financial incentive for requesters to tailor their FOIA requests, eliminating an important element of economic discipline in the allocation of scarce resources to the retrieval and dissemination of government information. As a result, entities such as respondent will have carte blanche to deluge agency FOIA offices with wide-ranging requests seeking information the disclosure of which may contribute little or nothing to the public understanding of government operations or activities. This danger is particularly acute in the context of private repositories or libraries, whose very purpose is to build comprehensive collections. This potential is borne out by the experience with the requests submitted by respondent alone. Respondent has flooded government agencies with requests for records in order to compile document sets (which it says will average 10,000 pages each (C.A. App. 27)) on what respondent projects to be more than 150 separate but broad topics pertaining to the foreign relations, national defense, and intelligence policy of the United States. A brief perusal of the document sets that respondent informed DoD that it was working on or planning illustrates both the extraordinary scope of this undertaking and its focus principally on history rather than "news." C.A. App. 28-31, 55-58. /9/ The number of FOIA requests made by respondent to accomplish its goals has been correspondingly enormous. We have been informed, for example, that since 1986, shortly after respondent was founded, respondent has filed 1116 FOIA requests with DoD, 868 with the Department of State, 581 with the NSC, and 285 with the CIA. /10/ In mid-January 1990, respondent had 599 requests pending with the Department of State, which constituted more than 50% of that Department's FOIA caseload. /11/ Many of these individual FOIA requests are wide-ranging, /12/ and even narrower requests can require extensive searching. Moreover, the potential impact of the decision is not limited to respondent's requests. Presumably any group interested in other areas of government activity, such as environmental regulation, immigration, or labor relations, would have a comparable incentive to form a private library or repository of government records at government expense. In fact, several entities not traditionally considered members of the "news media" -- Greenpeace, the Guatemalan Human Rights Commission/USA, the Center for National Security Studies, the Christic Institute, and the Wisconsin Committee on Occupational Safety and Health -- have already invoked the decision below to request favored fee status from federal agencies. The adverse consequences of that decision would be borne by more than the taxpayers and already overburdened agency FOIA offices. It would be borne as well by every other FOIA requester who would necessarily be disadvantaged by the preferential treatment of such requesters. All FOIA requesters unavoidably compete for a finite supply of agency time and resources. See Weisberg v. United States Department of Justice, 745 F.2d 1476, 1497 (D.C. Cir. 1984); Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 614 (D.C. Cir. 1976). The realization of one FOIA requester's self-interest, particularly given the exceptional and burdensome nature of the demands imposed by groups such as respondent, can work very much to the detriment of other FOIA requesters. /13/ In light of these significant practical consequences of the decision of the court of appeals and the clear errors in its legal ruling, that decision warrants review by this Court. This conclusion is not undermined by the absence of a circuit conflict on the question. Under 5 U.S.C. 552(a)(4)(B), any civil action under the FOIA may be brought in the United States District Court for the District of Columbia, in which the decision below on the fee issue will be binding precedent. In light of this venue provision and the resulting importance of the decisions of the District of Columbia Circuit on questions arising under the FOIA, the Court has in the past granted certiorari to review important FOIA rulings by that court even in the absence of a circuit conflict. See, e.g., CIA v. Sims, 471 U.S. 159 (1985); FBI v. Abramson, 456 U.S. 615 (1982); FOMC v. Merrill, 443 U.S. 340 (1979); NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). It should do so again here. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /14/ STUART M. GERSON Assistant Attorney General EDWIN S. KNEEDLER Assistant to the Solicitor General LEONARD SCHAITMAN MATTHEW M. COLLETTE Attorneys JANUARY 1990 /1/ The Freedom of Information Reform Act of 1986 was enacted as Title I, Subtitle N of the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Sections 1801-1804, 100 Stat. 3207-48 to 3207-50. /2/ Respondent has recently made available for purchase, at a price of $3900, its first indexed document set, which concerns United States policy toward El Salvador. The materials consist of a microfiche collection of the documents themselves, together with two hardbound volumes that contain chronological, subject-matter, and name indices and several glossaries. See 1 & 2 National Security Archive, El Salvador: The Making of U.S. Policy, 1977-1984 (1989). Respondent also published a paperback volume entitled The Chronology: The Documented Day-by-Day Account of the Secret Military Assistance to Iran and the Contras (1987). /3/ DoD also concluded that respondent does not qualify as an "educational institution" because it is not a school or institution of higher, professional or vocational education that operates a program of scholarly research, as required by 32 C.F.R. 286.33(e)(4). C.A. App. 147-148. /4/ Respondent initially brought this action in December 1986, challenging DoD's alleged policy of denying it fee waivers. After passage of the 1986 amendments, the suit was stayed while respondent sought preferred fee status under 5 U.S.C. 552(a)(4)(A)(ii)(II). After the effective date of DoD's regulations, and following a provisional ruling by DoD, the court remanded the matter for DoD to make the final determination discussed in the text. /5/ The court of appeals also rejected DoD's contention that respondent is ineligible for reduced fees because it requests documents for a "commercial use." App., infra, 14a-15a. We do not seek review of that holding here. /6/ As DoD ruled in the administrative proceedings, "(t)he media are those who themselves undertake to publish information to the general public (or some segment thereof)." C.A. App. 149. See Larson v. CIA, 843 F.2d 1481, 1483 n.5 (D.C. Cir. 1988) ("special solicitude for journalists" in 1986 FOIA fee provisions "does not extend to citizens who intend to release requested information to journalists because 'such a rule would enable requesters to avoid fees simply by asserting an intention to give the released documents to a newspaper'"). /7/ See, e.g., 22 C.F.R. 171.10(k) (Department of State); 31 C.F.R. 1.5(c)(2)(i)(C) (Department of the Treasury); 28 C.F.R. 16.10(j)(8) (Department of Justice); 15 C.F.R. 4.9(a)(8) (Department of Commerce); 45 C.F.R. 5.5 (Department of Health and Human Services); 10 C.F.R. 1004.2(m) (Department of Energy); 32 C.F.R. 1900.3(q) (CIA); 40 C.F.R. 2.100(h) (EPA); 29 C.F.R. 102.117(d)(vii) (NLRB); 47 C.F.R. 0.466(a)(7) (FCC); 49 C.F.R. 1002.1(f)(3) (ICC). /8/ Representative English admitted that he was "not in complete agreement with the Senate changes" to his proposal. 132 Cong. Rec. H9463 (daily ed. Oct. 8, 1986). But he then suggested that those changes could be papered-over through floor statements, saying that "(i)t is unnecessary, therefore, to amend the text of the bill since the intent has been so clearly stated." Ibid. This attempt to convert a losing position into a winning one through mere floor statements inserted in the legislative history should not be sanctioned by the courts. See United States v. Taylor, 108 S. Ct. 2413, 2424 (1988) (Scalia, J., concurring in part) (courts "should not make the equivalency between making legislative history and making an amendment so plausible"). /9/ The approximately 170 projected topics included in respondent's submission to DoD included: U.S. policy toward El Salvador, 1952-1985; U.S. policy toward Iran, 1952-1980; U.S. policy toward numerous other countries, including China, Panama, Cuba, and Mexico; U.S. intelligence policy documents, structure, organization and mission of component agencies, 1952-1985; the history of U.S. Military uses of space; the history and evolution of Joint Chiefs of Staff organization; various subjects relating to U.S.-U.S.S.R. arms policy and negotiations; U.S. and Soviet materials on Soviet crisis decision-making; U.S. policy toward the International Monetary Fund and the Third World debt crisis, 1977-1985; U.S. international oil and energy policies, 1952-1985; U.S. policies on human rights, 1952-1986; and U.S. defense relations with Canada, 1952-1985. In the introduction to its recently published document set, El Salvador: The Making of U.S. Policy, 1977-1984, respondent lists (Volume 1, at 7) the following "on-going documentation projects" for which it expects to have results within the next few years: U.S. policy toward Afghanistan; the Berlin Crisis, 1958-1961; chemical and biological warfare; the Cuban Missile Crisis; U.S. economic sanctions against the Soviet Union and Eastern Europe; U.S. policy toward Iran and the Iranian revolution, 1977-1980; the Iran-Contra Affair, 1983-1988; low-intensity conflict policy; U.S. policy toward Nicaragua, 1977-1988; U.S. nuclear non-proliferation policy; U.S. policy toward the Philippines; U.S. Presidential decision documents; U.S. policy toward South Africa; U.S. tactical forces in Europe; and U.S. intelligence policy. /10/ In some instances, a request is referred from one component of DoD to another, which may result in double-counting of some requests. /11/ The Department of the Treasury, Department of Commerce, FBI, Agency for International Development, and Arms Control and Disarmament Agency also have received a number of requests from respondent. /12/ Several recent examples of requests submitted to the State Department are for: "Copies of all records including but not limited to cables, memoranda, assessments and analyses relating in whole or in part to collaboration between Israel and South Africa on military technology and nuclear research from 1975 to 1989" (11/2/89); "Any papers produced by the Bureau of Intelligence and Research during 1958-1960 and 1961 concerning Berlin, German issues, European defenses, and East-West disarmament negotiations" (10/17/89, 10/18/89); "All cables, briefing papers, memos and reports relating to Vice President Mondale's visit to the People's Republic of China in August 1979" (8/11/89). /13/ By the same token, a holding by this Court that respondent does not qualify for the most favorable fee status on a blanket basis does not mean that respondent would be unable to secure an individualized waiver or reduction of fees in those instances in which it demonstrates that the disclosure of particular documents and its intended use would serve the public interest by contributing significantly to public understanding of the operations or activities of the government. See generally Larson v. CIA, 843 F.2d 1481 (D.C. Cir. 1988). /14/ The Solicitor General is disqualified in this case. APPENDIX