UNITED STATES DEPARTMENT OF STATE AND GEORGE P. SCHULTZ, SECRETARY
OF STATE, PETITIONERS V. THE WASHINGTON POST COMPANY

   No. 82-1925

   In the Supreme Court of the United States

   October Term, 1982

   The Solicitor General, on behalf of the United States Department of
State and the Secretary of State, 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
   Opinions below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement
     1. The statutory framework
     2. The proceedings in this case
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-19a) is
reported at 685 F.2d 698.  The order denying rehearing and the opinion
dissenting from the denial of rehearing en banc (App. B, infra,
20a-24a) are reported at 685 F.2d 706.  The opinion of the district
court (App. C, infra, 25a-37a) is reported at 501 F. Supp. 1152.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 13,
1982.  A petition for rehearing was denied on December 28, 1982 (App.
B, infra, 20a).  By order dated March 22, 1983, the Chief Justice
extended the time within which to file a petition for a writ of
certiorari to and including May 27, 1983.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   The pertinent constitutional and statutory provisions are
reproduced in App. D, infra, 38a-44a.

                          QUESTIONS PRESENTED

   1. Whether the statutes that authorize the President and the
Secretary of State to account confidentially for expenditures out of a
special appropriation for "unforeseen emergencies arising in the
diplomatic and consular service" are within the scope of Exemption 3
of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(3), thereby
protecting the records of such expenditures from public disclosure.

   2. Whether, if these statutes are not within the scope of Exemption
3, records of such expenditures nevertheless may be withheld from
public disclosure on the ground that the statutes are part of a
separate scheme by which Congress has exercised its authority under
the Statement and Account Clause of the Constitution (Art. I, Section
9, Cl. 7) to provide standards of public accountability and disclosure
in the specific context of government expenditures.

                               STATEMENT

   Respondent Washington Post Company brought this action under the
Freedom of Information Act, 5 U.S.C. (& Supp. V) 552, to obtain
records pertaining to expenditures by the Department of State from a
special account that is funded by an annual appropriation for
"unforeseen emergencies arising in the diplomatic and consular
service." Congress has authorized the Secretary of State to account
for such expenditures by certificate if he determines that it would be
advisable not to make public the specific uses for which the funds
were spent.  22 U.S.C. 2671;  31 U.S.C. 107.

   1. The Statutory Framework

   a. Article I, Section 9, Clause 7 of the United States Constitution
provides that "a regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published from time to
time." Pursuant to this constitutional mandate, Congress has directed
the Secretary of the Treasury to prepare a statement of receipts,
expenditures, and balances of the United States Government.  31 U.S.C.
1029, recodified at 31 U.S.C. 331(c) (see note 1, infra);  see United
States v. Richardson, 418 U.S. 166, 168 (1974).

   From the earliest days of the Nation, however, Congress has
determined that the national interest requires confidentiality with
regard to the expenditure of public funds for certain purposes.  See
United States v. Richardson, supra, 418 U.S. at 175 & n.7, 178 n.11;
Halperin v. CIA, 629 F.2d 144, 159-160 (D.C. Cir. 1980);  Harrington
v. Bush, 553 F.2d 190, 195-196 (D.C. Cir. 1977).  In a 1790 statute
appropriating funds for the conduct of foreign relations, Congress
required the President to cause a regular statement and account of
such expenditures to be laid before Congress annually.  The statute
provided that "the President shall account specifically for all such
expenditures of the said money as in his judgment may be made public,
and also for the amount of such expenditures as he may think it
advisable not to specify * * *." Act of July 1, 1790, ch. XXII,
Section 1, 1 Stat. 129.

   In Section 2 of the Act of Feb. 9, 1793, ch. 4, 1 Stat. 300,
Congress enacted permanent authorization for the accounting for such
funds by certificate if the President determined that the expenditures
should not be made public.  That Act provided that "in all cases"
where a sum of money has issued from the Treasury "for the purposes of
intercourse or treaty, with foreign nations," the President shall be
authorized "to cause the same to be duly settled annually with the
accounting officers of the treasury * * * by causing the same to be
accounted for, specifically, in all instances, wherein the expenditure
thereof may, in his judgment, be made public;  and by making a
certificate or certificates * * * of the amount of such expenditures,
as he may think it advisable not to specify, * * *." 1 Stat. 300.
Every such certificate was deemed a "sufficient voucher" for the
funds.  Ibid.  This provision was carried forward in Rev. Stat. 291
(1878 ed.) and eventually was codified at 31 U.S.C. 107.  See App. D,
infra, 40a.  /1/

   b. Congress also has included in appropriations acts specific
authority to account for expenditures in the area of foreign relations
by certificate.  As early as the Act of Mar. 3, 1887, ch. 342, 24
Stat. 481, Congress appropriated $50,000 "(t)o enable the President to
meet unforeseen emergencies arising in the diplomatic and consular
service" and for other purposes, to be accounted for pursuant to Rev.
Stat. 291.  See also, e.g., Act of Apr. 29, 1926, ch. 195, 44 Stat.
335.  In 1956, Congress enacted 22 U.S.C. 2671 to grant the Secretary
of State permanent authority to account for funds "expended for
unforeseen emergencies arising in the diplomatic and consular service
in accordance with Rev. Stat. 291 (31 U.S.C. 107)," but only to the
extent permitted in the appropriations act providing funds for that
purpose (App. D, infra, 39a).  See Act of Aug. 1, 1956, ch. 841,
Section 4, 70 Stat. 890.

   Consistent with 22 U.S.C. 2671, Congress has appropriated funds
each year to enable the Secretary of State to meet "unforeseen
emergencies arising in the diplomatic and consular service," and each
year it has specified that such funds are to be expended in accordance
with 31 U.S.C. 107.  Congress appropriated $2,100,000 for this purpose
in the appropriation act for Fiscal Year 1977 and $2,350,000 in the
appropriation acts for Fiscal Years 1978 and 1979.  /2/ In recent
years, at least, all expenditures from these special appropriations
have been accounted for by certificate, although the nature of some
expenditures has been made public.  C.A. App. 21, 25-48.  /3/

   c. For most of the history of the Nation, Congress did not permit
even a confidential audit of expenditures that were accounted for by
certificate.  As noted above, the Act of Feb. 9, 1793 (and, hence,
Rev. Stat. 291) authorized the President to cause such funds to be
settled with accounting officers of the Treasury by certificate, which
was deemed a "sufficient voucher" for the funds.  /4/ In the Budget
and Accounting Act of 1921, ch. 18, Section 312, 42 Stat. 25, Congress
directed the General Accounting Office to investigate the receipt and
disbursement of public funds.  To this end, the Comptroller General
and his staff were granted a right of access to records of all
departments and establishments of the government containing
information regarding their functions and "financial transactions,"
but this grant of access was expressly made inapplicable to
"expenditures made under the provisions of section 291 of the Revised
Statutes (31 U.S.C. 107)" (Section 313, 31 U.S.C. 54, recodified at 31
U.S.C. 716).  The legislative history of the Budget and Accounting Act
of 1921 clearly indicates that this exception was intended to preclude
access by the Comptroller General to records concerning "expenditures
made under the emergency fund for the Diplomatic and Consular
Service." H.R. Conf. Rep. No. 1044, 66th Cong., 2d Sess. 15 (1920).

   In the General Accounting Office Act of 1980 (Pub. L. No. 96-226,
94 Stat. 311), Congress for the first time granted the Comptroller
General limited access to certain records pertaining to expenditures
that may be accounted for by certificate.  Congress retained the
exception in the general access provision for expenditures made
pursuant to the authority in 31 U.S.C. 107.  See 31 U.S.C. (Supp. V)
54(a), recodified at 31 U.S.C. 716(a).  However, Congress authorized
the Comptroller General to audit such expenditures for the limited
purpose of determining whether they were actually made and were
permitted by law.  31 U.S.C. (Supp. V) 67(f), recodified at 31 U.S.C.
3524(a)(1).  At the same time, Congress specified that the results of
the audit and any related information, such as underlying
documentation, may be released only to the President or the head of
the agency concerned.  31 U.S.C. (Supp. V) 67(f)(2), recodified at 31
U.S.C. 3524(a)(2).  /5/ The legislative history of the 1980 Act
confirms Congress's understanding that the monies in the certificated
accounts for which it was authorizing a limited audit by GAO --
including the account for emergencies in the diplomatic and consular
service -- contain "confidential funds" that are "made available on a
confidential basis" and that the limitation on disclosure of
information by the Comptroller General, even to Congress, was intended
to strike a balance between preserving the confidentiality of the
expenditures and ensuring some accountability for them.  /6/

   2. The Proceedings In This Case

   a. In October 1979, a reporter employed by respondent Washington
Post Company filed a request with the Department of State under the
Freedom of Information Act (FOIA), 5 U.S.C. (& Supp. V) 552, for the
ledger sheets and schedules of disbursements and receipts for the
preceding three years from the account for unforeseen emergencies in
the diplomatic and consular service ("Emergency Fund") (App. A, infra,
2a;  C.A. App. 9).  By letter dated October 29, 1979, the Department
denied the request on the ground that those materials are exempt by
law from public disclosure under authority of 22 U.S.C. 2671 and 31
U.S.C. 107 (App. A, infra, 2a;  C.A. App. 10).  /7/ On March 6, 1980,
the Department's Appeals Review Panel sustained the denial, "(b)ased
upon the wording of 22 U.S.C. 2671 and 31 U.S.C. 107 and a long
history of practice and Congressional understanding that expenditures
from funds appropriated under those authorities are confidential
unless the President determines that they may be made public" (C.A.
App. 16).

   b. Respondent then filed this action pursuant to 5 U.S.C.
552(a)(4)(B) in the United States District Court for the District of
Columbia to compel disclosure of the records pertaining to the
Emergency Fund.  The district court rejected the contention that the
records could be withheld under Exemption 3(B) of the FOIA, which
permits the withholding of matters that are "specifically exempted
from disclosure by statute * * *, provided that such statute * * *
establishes particular criteria for withholding or refers to
particular types of matters to be withheld." 5 U.S.C. 552(b)(3)(B).
The court believed that 22 U.S.C. 2671 and 31 U.S.C. 107 are "too
general" in the discretion granted the Secretary and thus do not
specify "particular criteria" or "particular types of matter" to be
withheld (App. C, infra, 28a-29a).

   The district court nevertheless sustained the withholding of the
material, finding that its conclusion regarding the application of
Exemption 3 was in "sharp conflict" with "other actions by Congress
indicating its intent, in the exercise of clear constitutional
authority, to withhold the very information" at issue (App. C, infra,
30a).  The court observed that it was "uncontroverted" that Congress,
in the exercise of its authority under the Statement and Account
Clause of the Constitution (Art. 1, Section 9, Cl. 7) to "'define
reporting requirements for foreign intelligence operations and related
expenditures,'" had "throughout history" granted the Executive
authority to make such payments without disclosing them publicly and
that "the practice of certification by the Secretary of State has long
been endorsed by Congress" (App. C, infra, 31a-32a, quoting Halperin
v. CIA, supra).  The district court also noted that Congress has
"regularly exercised its oversight authority" over the Emergency Fund
and in 1980 had "strengthen(ed)" that oversight by subjecting the Fund
to limited audit by the Comptroller General in a manner that
"preserves the secrecy of these expenditures" (App. C, infra, 33a;
see pages 6-7, supra).

   The district court reasoned that, in order for respondent to
prevail in this FOIA suit, the court would have to find that the FOIA
"was intended to repeal this long exercised authority by Congress to
maintain secrecy in the expenditure of funds affecting the nation's
foreign relations, and, in particular, secrecy in expenditures from
the Emergency Fund" (App. C, infra, 34a).  The court found "no
indication in any legislative history that FOIA was ever for a moment
intended to have any such effect" (ibid.).  "Indeed," the court
explained, "the stringent controls on disclosure included in the
recent legislation authorizing GAO audits of the Fund would be
meaningless if a FOIA request could compel release of that same
information" (ibid.).  Under these circumstances, the court held that
it would "not impute to Congress the intent for such radical
disclosures under FOIA, or the abandonment of its constitutional
power, and the plenary authority of Congress in this area will be
respected" (ibid.).

   c. The court of appeals reversed (App. A, infra, 1a-19a).  The
court acknowledged the strength of the government's contentions that
the provision in 31 U.S.C. 107 for secret accounting "bespeaks an
intent of Congress to allow those expenditures to be maintained in
absolute secrecy" and that "it would be foolish to account by
certificate for expenditures subsequently disclosed under FOIA" (App.
A, infra, 11a);  the court observed that "(t)his may be an appealing
argument for FOIA exemption" (ibid.).  The court of appeals
nevertheless was of the view that 22 U.S.C. 2671 and 31 U.S.C. 107 are
"too broad" to be accorded Exemption 3 status (App. A, infra, 10a).

   The court of appeals also rejected the district court's conclusion
that the withholding of the requested records should be sustained
because Congress did not intend the FOIA to override the longstanding
confidentiality of expenditures from the Emergency Fund.  The court of
appeals acknowledged that "(o)ther legislation, its history, and
powers of Congress underlying it are not to be ignored" (App. A,
infra, 13a).  But it viewed the FOIA as the "definitive word" on
disclosure of government information and explained that the other
legislation relied upon in this case did not satisfy what it believed
to be the "strictures" of Exemption 3 (App. A, infra, 14a).  /8/ In so
holding, the court suggested that Congress would have protected the
records about the Emergency Fund from disclosure under the FOIA if it
had "focused directly" on the problem, and it indicated that it had
"substantial reservations" about the wisdom of disclosing the records
(App. A, infra, 14a).  The court concluded, however, that it was
without "dispensing power" to repair what may have been an "oversight"
by Congress (ibid.).

   In a concurring opinion, Judge Friedman recognized that 22 U.S.C.
2671 and 31 U.S.C. 107 reflect a policy of secret accounting for
expenditures relating to foreign affairs that "is almost as old as the
Constitution" and that the 1980 Act providing for GAO audit of
unvouchered accounts was intended to maintain that secrecy (App. A,
infra, 16a).  These statutes left "no doubt" in his mind "that if
Congress ever had considered whether to permit disclosure under the
Freedom of Information Act of material relating to the Emergency Fund,
it would not have permitted such disclosure" (id. at 18a).  But Judge
Friedman concluded that Exemption 3 could not be interpreted to
support the holding that "Congress would have favored if it had
considered the problem" (ibid.).

   d. The government's petition for rehearing with suggestion for
rehearing en banc was denied, with Judges MacKinnon, Bork, and Scalia
dissenting (App. B, infra, 20a-24a).  The dissenting judges, in an
opinion by Judge Scalia, maintained that "the effect of the panel
decision is to overturn a congressionally approved tradition and
practice of confidentiality in foreign affairs matters that is almost
two centuries old" and to "make nonsense" of the 1980 legislation that
establishes detailed limitations upon access to records about the
Emergency Fund (id. at 22a).  The dissenters observed that the premise
of the 1980 Act that the information would not be publicly available
"could not be clearer" (id. at 23a).  In their view, the 1980 Act was
more specifically directed to the issue in this case than the
legislative history of the 1976 amendment to FOIA Exemption 3, because
it addressed disclosure of confidential expenditures in particular,
rather than disclosure of government information in general.  For
these reasons, the dissenters concluded, the 1980 Act "was a factor
that demanded attention -- not as an isolated phenomenon whose
incompatibility with the court's interpretation of Exemption 3 could
be marvelled at, but as an essential element of the interpretive
process itself" (id. at 23a).

                   REASONS FOR GRANTING THE PETITION

   The holding of the court of appeals that the records at issue here
may not be withheld under Exemption 3 of the FOIA is inconsistent with
a practice nearly as old as the Constitution of maintaining the
confidentiality of certain expenditures made in the conduct of the
Nation's foreign relations.  Congress has repeatedly approved that
practice and has specifically provided for the confidential accounting
for monies in the Emergency Fund in each year's appropriation act for
the Department of State.  So complete has been the traditional
confidentiality of these expenditures that, until 1980, even the
Comptroller General could not examine the records pertaining to the
Emergency Fund.

   The court of appeals nevertheless held that Congress, in enacting
the 1976 amendments to Exemption 3, intended to repeal this
long-standing statutory authorization of confidentiality and even
prospectively to preempt the post-1976 enactments in which Congress
has reaffirmed its intention that the Emergency Fund remain
confidential.  Nothing in the text or legislative history of Exemption
3 suggests such a startling result.  To the contrary, the State
Department's withholding of the records under Exemption 3 is fully
consistent with the terms and purposes of that Exemption.  Indeed,
even the court of appeals appeared to agree with the district court
that the result it reached under Exemption 3 is contrary to the
congressional intent that records of expenditures out of the Emergency
Fund remain confidential.

   The court of appeals' ruling is inconsistent with recent decisions
of this Court that have rejected the District of Columbia Circuit's
equally formalistic constructions of other FOIA exemptions (Department
of State v. Washington Post Co., 456 U.S. 595 (1982);  FBI v.
Abramson, No. 80-1735 (May 24, 1982)), and with the decisions of other
courts of appeals that have applied Exemption 3 in a manner that is
faithful to the congressional intent underlying both the Exemption and
the particular withholding statutes involved.  In addition, the
decision below threatens to undermine the ability of the Department of
State to guarantee confidentiality in certain delicate areas of
foreign relations and calls into question the traditionally absolute
confidentiality of other appropriated funds that are accounted for by
certificate.  Review by this Court therefore is warranted.

   1. Exemption 3 of the FOIA provides that the Act's mandatory
disclosure requirements do not apply to matters that are "specifically
exempted from disclosure by statute * * *, provided that such statute
* * * (B) establishes particular criteria for withholding or refers to
particular types of matters to be withheld." 5 U.S.C. 552(b)(3).  /9/
The statutes at issue here plainly fall within the terms of Exemption
3.

   a. The statutes governing access to documents related to the
Emergency Fund refer to "types of matters to be withheld" in a manner
that is "particular" in a number of respects.  Under 22 U.S.C. 2671,
the Secretary of State is authorized to make expenditures, "from such
amounts as may be specifically appropriated therefor," for "unforeseen
emergencies arising in the diplomatic and consular service." Thus,
Section 2671 applies only to the limited amount of funds
"specifically" earmarked by Congress, and the expenditures of those
funds in turn must be consistent with the purpose of the
appropriation.  The funds are appropriated annually (see page 4,
supra), so that the records are further particularized by their
reference to expenditures for a designated Fiscal Year.

   Moreover, the amount appropriated annually for the Emergency Fund
is only a very minor portion of the overall budget for the Department
of State:  In the appropriations acts for Fiscal Years 1977-1979, the
three years to which the FOIA request in this case applies, the total
amount appropriated by Congress for the Emergency Fund was less than
0.25% of the total amount appropriated for State Department
activities.  /10/ Finally, the statutory authorization in 22 U.S.C.
2671 for certificate accounting pursuant to 31 U.S.C. 107 -- and,
therefore, for withholding from the public -- expressly applies only
"to the extent" specifically provided in the appropriation act itself.
 In sum, through the cumulative operation of 31 U.S.C. 107, 22 U.S.C.
2671, and the appropriations process, Congress has quite specifically
identified the "particular types of matters to be withheld" from among
the full range of State Department documents to which the FOIA
otherwise applies.

   b. The court of appeals nevertheless found the statutes "too broad"
to qualify for Exemption 3 status because the Emergency Fund has been
used for what the court believed to be an unduly wide range of
purposes (App. A, infra, 10a;  see also App. C, infra, 29a-30a).  This
analysis is seriously flawed.  The Fund serves a supplementary,
contingent purpose;  it does not sustain on-going programs throughout
the Department for which a great many documents might be generated.
Moreover, expenditures from the Fund in fact fall into several quite
narrow categories:  evacuation and relief for United States government
personnel and citizens;  special diplomatic functions and gestures in
the conduct of the Nation's foreign relations (state visits, official
and unofficial delegations, gifts to foreign dignitaries, etc.);  /11/
payment of informers and related expenses in the investigation of
passport and visa fraud;  and a limited number of other functions.
See note 3, supra.

   The court of appeals also failed to appreciate that because the
Fund is expressly reserved for "unforeseen" contingencies in the
conduct of foreign relations, Congress realistically could not -- and
no doubt would not want to -- place rigid substantive limitations on
its use.  Instead, Congress has sought to exercise a measure of
control over the expenditures by placing a limit on the amount of
money available, by authorizing certificate accounting on an annual
rather than open-ended basis, and by providing since 1980 for a
limited confidential audit by the Comptroller General.  Congress's
practical approach to the matter of accountability for these
confidential expenditures does not deprive the relevant statutes of
Exemption 3 status.

   c. Furthermore, the language of 22 U.S.C. 2671 and the annual
appropriations acts is at least as specific as the language of other
statutes that have been held to refer to "particular types of matters
to be withheld" and thus to qualify under Exemption 3.  For example,
50 U.S.C. 403(d)(3) provides that the Director of Central Intelligence
"shall be responsible for protecting intelligence sources and methods
from unauthorized disclosure" -- language that can result in the
exemption of records generated throughout the CIA.  But despite its
breadth, this statute was specifically identified in the legislative
history of amendments to the FOIA as being among those to which
Exemption 3 applies, /12/ and 50 U.S.C. 403(d)(3) consistently has
been held to be an Exemption 3 statute on the ground that it refers to
"particular types of matters to be withheld." See, e.g., Goland v.
CIA, 607 F.2d 339, 350 (D.C. Cir. 1978), cert. denied, 445 U.S. 927
(1980);  National Commission on Law Enforcement v. CIA, 576 F.2d 1373,
1376 (9th Cir. 1978);  App. A, infra, 10a n.8, and cases cited.  The
statutes involved here apply to a far smaller category of documents
than does 50 U.S.C. 403(d)(3), and the reference in those statutes to
"unforeseen emergencies arising in the diplomatic and consular
service" is no less "particular" than the reference to "intelligence
sources and methods" in 50 U.S.C. 403(d)(3).  The court of appeals
acknowledged that the statutes involved in this case share "common
origins and general subject matter" with 50 U.S.C. 403(d)(3) and
related CIA statutes (App. A, infra, 10a-11a;  see generally Halperin
v. CIA, supra, 629 F.2d at 158-161), and there accordingly is no basis
for concluding that Congress intended that the expenditures at issue
here would be entitled to protection against public disclosure.  /13/

   Similarly, the statute exempting from disclosure information
concerning the "organization or any function of the National Security
Agency, of any information with respect to the activities thereof, or
of the names, titles, salaries, or number of the persons employed by
such agency" (Pub. L. No. 86-36, Section 6, 73 Stat. 64) has been held
to be an Exemption 3 statute on the ground that it refers to
"particular types of matters to be withheld." See Founding Church of
Scientology, Inc. v. National Security Agency, 610 F.2d 824, 827 (D.C.
Cir. 1979);  cf. Church of Scientology v. United States Postal
Service, 633 F.2d 1327, 1328-1329 (9th Cir. 1980).  See also Goland v.
CIA, supra, 607 F.2d at 350 (50 U.S.C. 403g).  This language, too, has
a far broader sweep than do the statutes governing the Emergency Fund.
 Other statutes permitting withholding of a wide range of documents
likewise have been held to refer to sufficiently "particular types of
matters to be withheld for purposes of Exemption 3.  /14/ The court of
appeals' holding in this case therefore departs from other decisions
that have accorded Exemption 3 status to statutes containing language
of comparable or greater breadth.

   d. The decision below also is inconsistent with the decisions of
other courts recognizing that the text, background, and purposes of
the particular withholding statute relied upon must be given
considerable weight in determining whether Congress intended to repeal
that withholding authority when it amended Exemption 3 in 1976.  /15/
Congress amended Exemption 3 in response to this Court's decision in
FAA Administrator v. Robertson, 422 U.S. 255 (1975), which held that
Exemption 3 was intended to preserve all preexisting withholding
statutes, even those that vested broad discretion to withhold a wide
range of documents.  Congress sought to eliminate from the coverage of
Exemption 3 statutes granting an agency head "cart blanche (sic) to
withhold any information he pleases" (H.R. Rep. No. 94-880 (Pt. I),
94th Cong., 2d Sess. 23 (1976)).  See Consumer Product Safety
Commission v. GTE Sylvania, 447 U.S. 102, 121-122 n.18 (1980).
"Congress did not, however, itself undertake to sort out those
nondisclosure statutes that it comprehended as remaining within the
exemption from those that it intended to exclude." American Jewish
Congress v. Kreps, 574 F.2d 624, 628 (D.C. Cir. 1978).  Instead, it
incorporated general standards in Exemption 3 and left to the courts
the task of determining whether any given preexisting nondisclosure
statute had effectively been repealed.

   Thus, in considering whether a non-disclosure statute qualifies
under Exemption 3, as amended, a court's inquiry must be directed to
whether Congress intended to require a particular category of
documents, previously exempt from disclosure, to be made public on
request.  We submit that it is inconceivable that Congress, in 1976,
intended to mandate public release of the records relating to the
Emergency Fund.  All of the indicia of legislative intent support the
conclusion that Congress "comprehended (the statutes pertaining to the
Emergency Fund) as remaining within the exemption" (American Jewish
Congress v. Kreps, supra, 574 F.2d at 628).

   First, this case raises none of the concerns that led Congress to
overrule the decision in Robertson.  The Emergency Fund statutes do
not grant the Secretary of State carte blanche to withhold any records
he pleases from among a broad range of materials that may be filed
with or generated throughout the Department.  Compare FAA
Administrator v. Robertson, supra, 422 U.S. at 266;  42 U.S.C.
1306(a), cited with disapproval in H.R. Conf. Rep. 94-1441, 94th
Cong., 2d Sess. 25 (1976).  See Medina-Hincapie v. Department of
State, supra, 700 F.2d at 742-743;  De Laurentiis v. Haig, supra, 686
F.2d at 193-194;  American Jewish Congress v. Kreps, supra, 574 F.2d
at 630-631;  Lee Pharmaceuticals v. Kreps, supra, 577 F.2d at 616-617.
 They focus narrowly on expenditures from a discrete appropriations
account.

   Second, the courts of appeals have insisted on a clear showing of
congressional intent before concluding that longstanding traditions of
confidentiality afforded certain information have been abandoned in
the name of the more generalized interest in open government embodied
in Exemption 3, especially where, as here, disclosure would jeopardize
the very success of the governmental function at issue.  See Irons &
Sears v. Dann, supra, 606 F.2d at 1220-1221;  Lee Pharmaceuticals v.
Kreps, supra, 577 F.2d at 617.  Cf. Illinois v. Abbott & Associates,
Inc., No. 81-1114 (Mar. 29, 1983), slip op. 13-14 ("the rule (of grand
jury secrecy) is so important, and so deeply-rooted in our traditions,
that we will not infer that Congress has (modified it) without
affirmatively expressing its intent to do so").  The court below
ignored that requirement here.

   Third, the courts of appeals uniformly have framed the ultimate
determination to be whether the decision to maintain the
confidentiality of the information in question may fairly be said to
reflect a judgment by Congress, with an appreciation of the dangers
inherent in airing the information, rather than an abdication of
legislative decision-making in favor of Executive discretion.  See
Medina-Hincapie v. Department of State, supra, 700 F.2d at 736;  De
Laurentiis v. Haig, supra, 686 F.2d at 193;  Church of Scientology v.
United States Postal Service, supra, 633 F.2d at 1330-1331;  Irons &
Sears v. Dann, supra, 606 F.2d at 1220;  American Jewish Congress v.
Kreps, supra, 574 F.2d at 628-629.  It is clear, as even the court
below appeared to concede, that public disclosure of the records at
issue in this case would be contrary to a consistent congressional
judgment that the Secretary must have the authority to keep the
expenditures confidential.

   We deal here not merely with a longstanding statutory authorization
and a uniform practice of confidentiality;  in addition, against this
background, Congress continued to pass an appropriations act for each
of the years in question -- at the time of and after the 1976
amendment to Exemption 3 -- specifically authorizing confidential
accounting.  See page 4 and note 2, supra.  See Haig v. Agee, 453 U.S.
280, 301 (1981).  Indeed, in each of those years, Congress focused on
the Emergency Fund not once but twice, because in each year the
appropriation first was authorized by separate legislation.  /16/
Moreover, as explained above (see pages 6-7), Congress provided in
1980 for a highly confidential and limited GAO audit of the Emergency
Fund records that confirms the confidentiality of the expenditures.
As Judge Scalia observed, these post-1976 statutes are more
specifically directed to the present question than the 1976
legislative history of Exemption 3, "since (they) address() disclosure
of confidential expenditures in particular, rather than disclosure of
government information in general" (App. A, infra, 23a-24a).  The
court of appeals' wooden and highly "formalistic reading" of Exemption
3 ignores these unmistakable indicia of legislative intent.  FBI v.
Abramson, supra, slip op. 15;  see id. at 9.  See also Binion v.
Department of Justice, 695 F.2d 1189, 1194 (9th Cir. 1983).

   e. The court of appeals also failed to give weight to the fact that
the statutes at issue here concern the President's conduct of foreign
relations, an area in which this Court has recognized that Congress
"must often accord to the President a degree of discretion and freedom
from statutory restriction which would not be admissible were domestic
affairs alone involved." United States v. Curtiss-Wright Export Corp.,
299 U.S. 304, 319 (1936).  The confidential nature of information on
which the conduct of diplomatic relations frequently is based, the
delicate judgments about the effect of various actions on the Nation's
foreign relations, and other factors bearing on the President's role
as the sole organ of foreign affairs establish "the unwisdom of
requiring Congress in this field of governmental power to lay down
narrowly definite standards by which the President is to be governed"
(299 U.S. at 321-322).  See also Dames & Moore v. Regan, 453 U.S. 654,
678 (1981);  Haig v. Agee, supra, 453 U.S. at 291-292;  Chicago &
Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103,
109-111 (1948).  The court of appeals therefore erred in insisting
upon a degree of specificity that Congress has deliberately eschewed
in this area.  Indeed, Exemption 1 of the FOIA itself reflects the
deference and latitude to maintain secrecy traditionally afforded the
Executive in such matters even in the face of the countervailing
interest in open government.  Exemption 1 provides for the withholding
of material that is authorized to be kept secret pursuant to Executive
Order of the President "in the interest of national defense or foreign
policy" (5 U.S.C. 522(b)(1)) -- a standard framed in quite general
terms.

   2. Even if the court of appeals were correct that the statutes
involved here do not satisfy the usual criteria for Exemption 3
status, the court nevertheless erred in concluding (App. A, infra,
11a-15a) that Congress intended the FOIA to supplant the separate
statutory scheme, of which these statutes are a part, by which
Congress long has exercised its power under the Statement and Account
Clause to regulate public disclosure in the specific area of
government receipts and expenditures.  This Court has noted in this
regard the "nearly two centuries of acceptance of a reading of (the
Statement and Account Clause) as vesting in Congress plenary power to
spell out the details of precisely when and with what specificity
Executive agencies must report the expenditure of appropriated funds
and to exempt certain secret activities from comprehensive public
reporting." United States v. Richardson, supra, 418 U.S. at 178 n.11.

   The Seventh Circuit, in contrast to the decision below, recently
has recognized that a separate system of disclosure narrowly focusing
on a discrete category of documents must take precedence over the
disclosure provisions and exemptions in the FOIA, at least where, as
here, Congress has enacted laws after the 1976 amendment to Exemption
3 that provide for the confidentiality of the matters in question.
See King v. IRS, supra, 688 F.2d at 488;  see also Zale Corp. v. IRS,
481 F. Supp. 486 (D.D.C. 1979).  /17/ A contrary result would mean
that Congress, in amending Exemption 3 in 1976, intended to accomplish
a "prospective pre-emption" of subsequent legislation that clearly was
intended to permit the withholding of government information (App. A,
infra, 23a, quoting King v. IRS, supra, 688 F.2d at 488, and Zale
Corp. v. IRS, supra, 481 F. Supp. at 489).  The court of appeals
should have been especially reluctant to conclude that Congress
intended that result in this case, because the separate system of
disclosure and exemption is rooted in the Constitution itself.

   3. The decision of the court of appeals threatens to undermine the
ability of the Department of State to assure confidentiality in
certain delicate areas of diplomatic relations.  Disclosure of certain
of the information at issue could expose the details or dimensions of
secret activities;  it could also lead to comparisons in the amount of
expenditures made with respect to different nations or their heads of
state that could embarrass those nations or leaders and thereby cause
damage to our relations with other countries (C.A. App. 25-26, 30, 44,
47-48).  Although some of the records might qualify for withholding
under other exemptions, the judges dissenting from the denial of
rehearing en banc correctly observed that "only Exemption 3 can
conceivably cover the entire category of material that the 1980
statute so scrupulously withholds from all government officials except
a designated few" (App. A, infra, 22a n.*).  Moreover, the decision of
the court of appeals calls into question the traditionally absolute
confidentiality of other funds that Congress also has authorized to be
accounted for by the certificate of a responsible Executive official.
See H.R. Rep. No. 96-425, supra, at 25-26 (listing such accounts).

   Because every withholding of records under the FOIA may be
challenged in the District of Columbia Circuit (5 U.S.C.
552(a)(4)(B)), the government cannot easily afford to await further
developments in other circuits on the specific question of the
application of Exemption 3 to the records pertaining to the Emergency
Fund or other certificated accounts.  Review by this Court therefore
is warranted.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted,

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   DOUGLAS LETTER

      Attorneys

   MAY 1983

   /1/ After the court of appeals rendered its decision, 31 U.S.C. 107
was recodified without substantive change at 31 U.S.C. 3526(e).  Pub.
L. No. 97-258, Section 1, 96 Stat. 877, 964-965.  See H.R. Rep. No.
97-561 (Pt. 1), 97th Cong., 2d Sess. 1-3 (1982).  In order to maintain
consistency with the decisions below, we shall continue to refer to
the provision as 31 U.S.C. 107.  The other Sections of Title 31 cited
in the petition were recodified in 1982 as well;  we will cite to both
the original and recodified versions of these Sections.

   /2/ Pub. L. No. 94-362, 90 Stat. 937-938;  Pub. L. No. 95-86, 91
Stat. 419-420;  Pub. L. No. 95-431, 92 Stat. 1021-1022 (App. D, infra,
42a-43a).  We also have been informed by the Department of State that
an additional $1.3 million was allocated to the Emergency Fund for
Fiscal Year 1979 from a supplemental appropriation in Pub. L. No.
96-304, 94 Stat. 857, 894.

   /3/ "C.A. App." refers to the Joint Appendix in the court of
appeals.  Expenditures from the appropriation have been for such uses
as:  evacuation of government personnel and their dependents and
private citizens from other countries in periods of unrest or natural
disaster;  relief and repatriation loans for destitute citizens
abroad;  visits to the United States by foreign officials;
Presidential delegations to foreign inaugurations, funerals, etc.;
official travel abroad by the President, Vice President and Members of
Congress;  official travel by the Secretary of State;  official
representational functions;  expenses incurred for special overseas
representational functions not otherwise covered by an appropriation;
investigation of passport and visa fraud;  official gifts to foreign
dignitaries;  and, in 1980 and 1981, certain expenditures in
connection with the Iranian hostage situation.  C.A. App. 147-148;
App. C, infra, 35a-37a.  Some funds also were spent from the account
in connection with the Department's Fine Arts Committee (C.A. App.
145-146).

   /4/ After the function of settling accounts was transferred to the
Comptroller General in 1921, 31 U.S.C. 107 was revised to provide for
settlement of accounts by certificate with the General Accounting
Office.  See 31 U.S.C. 107 note.

   /5/ In the event of an unresolved discrepancy, a further limited
disclosure may be made to the Senate Committee on Governmental
Affairs, the House Committee on Government Operations, and the
committees of the House and Senate having legislative or appropriation
oversight of the expenditure.  31 U.S.C. (Supp. V) 67(f)(2),
recodified at 31 U.S.C. 3524(a)(2).

   /6/ S. Rep. No. 96-570, 96th Cong., 2d Sess. 3-4 (1980);  H.R. Rep.
No. 96-425, 96th Cong., 1st Sess. 3, 25 (1979);  126 Cong. Rec. 5913
(1980) (remarks of Rep. Brooks);  126 Cong. Rec. S2062 (daily ed. Feb.
28, 1980) (remarks of Sen. Percy);  124 Cong. Rec. 33251 (1978)
(remarks of Rep. Brooks);  General Accounting Office Act of 1979:
Hearing Before a Subcomm. of the House Comm. on Government Operations,
96th Cong., 1st Sess. 48, 49, 87, 104 (1979);  J.A. 92-94.

   /7/ The State Department granted the reporter's request for other
records pertaining to another account and the Department's Fine Arts
Committee (App. A, infra, 2a;  C.A. App. 10).

   /8/ The court stated that, on remand, the district court could
consider whether other FOIA exemptions might apply (App. A, infra,
14a).

   /9/ Subpart (A) of Exemption 3 permits the withholding of matters
specifically exempted from disclosure by a statute that "requires that
the matters be withheld from the public in such a manner as to leave
no discretion on the issue." 5 U.S.C. 552(b)(3)(A).  This branch of
Exemption 3 is inapplicable here because 31 U.S.C. 107 does permit
disclosure in certain circumstances.

   /10/ See Pub. L. No. 94-362, 90 Stat. 937-942;  Pub. L. No. 95-86,
91 Stat. 419-424;  Pub. L. No. 95-431, 92 Stat. 1021-1025.

   /11/ Congress has required that any money spent by the Secretary
for gifts to foreign officials come from the Emergency Fund.  22
U.S.C. (Supp. V) 2694.  This may be viewed as a ratification of the
use of the Fund for diplomatic purposes of the same general nature,
including official travel and visits.

   /12/ H.R. Rep. No. 94-880(Part II), 94th Cong., 2d Sess. 15 n.2
(1976);  H.R. Rep. No. 93-1380, 93d Cong., 2d Sess. 12 (1974);  S.
Rep. No. 93-854, 93d Cong., 2d Sess. 16 (1974).

   /13/ Indeed, the Central Intelligence Agency Act of 1949, ch. 227,
Section 8, 63 Stat. 212, 50 U.S.C. 403j(b), provides for certificate
accounting in a manner that closely parallels 22 U.S.C. 2671 and 31
U.S.C. 107.  Under 50 U.S.C. 403j(b), in the case of expenditures "for
objects of a confidential, extraordinary, or emergency nature," the
expenditures are to be accounted for "solely on the certificate of the
Director," which shall be deemed a "sufficient voucher" for the amount
certified.  See Halperin v. CIA, supra, 629 F.2d at 160-161.

   /14/ See Irons & Sears v. Dann, 606 F.2d 1215 (D.C. Cir. 1979),
cert. denied, 444 U.S. 1075 (1980);  Lee Pharmaceuticals v. Kreps, 577
F.2d 610 (9th Cir. 1978), cert. denied, 439 U.S. 1073 (1979);  cf. De
Laurentiis v. Haig, 686 F.2d 192, 194 (3d Cir. 1982) (35 U.S.C. 122:
"(a)pplications for patents" and "information concerning the same");
Medina-Hincapie v. Department of State, 700 F.2d 737, 742-743 (D.C.
Cir. 1983);  De Laurentiis v. Haig, supra (8 U.S.C. 1202(f):  records
pertaining to the "issuance or refusal of visas or permits to enter
the United States");  Currie v. IRS, No. 81-7984 (11th Cir. May 2,
1983), slip op. 2751;  King v. IRS, 688 F.2d 488, 496 (7th Cir. 1982);
 Moody v. IRS, 654 F.2d 795, 797 & n.4 (D.C. Cir. 1981);  Chamberlain
v. Kurtz, 589 F.2d 827 838-839 (5th Cir.), cert. denied, 444 U.S. 842
(1979) (26 U.S.C. (& Supp. V) 6103:  tax "return information").

   /15/ The amendment is contained in Section 5(b) of the Government
in the Sunshine Act, Pub. L. No. 94-409. 90 Stat. 1247.

   /16/ Pub. L. No. 94-350, 90 Stat. 823;  Pub. L. No. 95-105, 91
Stat. 844;  Pub. L. No. 95-426, 92 Stat. 963.  The committee reports
on those laws specifically refer to the authorization of
appropriations for the Emergency Fund.  See S. Rep. No. 94-703, 94th
Cong., 2d Sess. 4 (1976);  H.R. Rep. No. 94-1083, 94th Cong., 2d Sess.
3 (1976);  S. Rep. No. 95-194, 95th Cong., 1st Sess. 7 (1977);  H.R.
Rep. No. 95-231, 95th Cong., 1st Sess. 5 (1977);  S. Rep. No. 95-842,
95th Cong., 2d Sess. 4 (1978);  H.R. Rep. No. 95-1160, 95th Cong., 2d
Sess. 6 (1978).

   /17/ The Eleventh Circuit also recently indicated approval of this
approach with respect to 26 U.S.C. (& Supp. V) 6103, at issue in King
and Zale, but declined to follow that approach because it was bound by
prior circuit precedent that made that course inappropriate.  See
Currie v. IRS, supra note 14, slip op. 2751-2752.

   Appendix Omitted