ELR Citation: ELR 20147
No(s). 24,573 (D.C. Cir. Apr 13, 1971)

District court's dismissal of suit under the Freedom of Information Act to compel the Director of the Office of Science and Technology to make public a report on the supersonic transport originally prepared for Dr. Lee A. Dubridge, then-Science Advisor to the president, reversed and case remanded for determination whether the report, though an agency record, is exempt from the disclosure requirements of the Act. The doctrine of executive privilege was not expressly invoked by the government and is not before the court. If the government claims the privilege on remand, the district court should first decide whether specific exemptions listed in the Act apply here so that the court may avoid the separation of powers issues raised by the constitututional claim. The district court may not deny relief under the Act on general equitable grounds, because Congress eliminated ordinary discretionary barriers to injunctive relief in passing the Act.

Counsel for Appellants:
Peter L. Koff
252 Harvard Street
Cambridge, MA 02139
(617) 722-4000, ext. 668

Lawrence Speiser
Melvin L. Wulf
American Civil Liberties Union
Foundation
1424 16th Street, NW
Washington, DC
(202) 483-3830

Hope Eastman
American Civil Liberties Union Foundation
156 Fifth Avenue
New York, NY 10010
(212) 675-5990

Counsel for Appellees:
Jeffrey F. Axelrad
Harland F. Leathers
Robert V. Zener
Morton Hollander Attorneys
Department of Justice
Washington, DC 20530
(202) 737-8200

Thomas A. Flannery, U.S. Attorney
District Court Building
Washington, DC
(202) 783-5700

Before BAZELON, Chief Judge, VAN DUSEN,^* Circuit Judge, U.S. Court of Appeals for the Third Circuit, and WILKEY, Circuit Judge.