Gates v. Schlesinger (366 F. Supp. 797, 1973)

MEMORANDUM

AUBREY E. ROBINSON, Jr., Dis-. trict Judge.

Plaintiffs herein seek a Preliminary Injunction requiring Defendant officials of the Department of Defense to open to the public a meeting of the Defense Advisory Committee on Women in the Services (DACOWITS) now scheduled to be held October 14-18, 1973 in Orlando, Florida. Plaintiffs contend that the Federal Advisory Committee Act (5 U.S.C. App. I, P.L. 92-463) (the Act) requires that the DACOWITS meeting be open to the public. The Court ^agrees that Plaintiffs have made the requisite showing at this stage of the proceedings to warrant the issuance of a Preliminary Injunction.

The Act, Section 10(a)(1), expressly requires that “each advisory committee meeting shall be open to the public.” Defendants have based their decision to close the working sessions of the DA-COWITS meeting on the exception to this open meeting requirement contained in Section 10(d) of the Act. That exception, as relevant here, provides that meetings may be closed when an appropriate authority determines that the meeting.is “concerned with matters listed in section 552(b) of Title 5.” 5 U.S. C. § 552(b) lists the matters exempted from disclosure ^ouader the Freedom of Information — A ell Tme specific exemption claimed as' applicable here is § 552(b)(5) for “inter-agency or intraagency memorandums or letters. ft

The Assistant Secretary of Defense (Manpower and Reserve Affairs) has determined that:

These working sessions involve the exchange of verbal information and proposals between the Directors of the women’s military components which, if written, would fall within the exemption in clause (5) of Section 552(b) of Title 5, United States Code.

In a supporting affidavit opposing the present motion for Preliminary Injunction, the Assistant Secretary has elaborated on the above determination.

These sessions involve debate and an exchange of views on policies affecting women in the services (T)he women Directors of each of the women’s military components are present as a source of information to the Committee members. The women directors are asked many questions by the Committee members as to what real problems currently are for women in the military. In answering those questions, the women Directors discuss with the Committee internal views and proposals which, if written, would fall within the exception clause (5) of section 552(b) of Title 5, United States Code, .

The Court has several 3!ffI5ulties with Defendants’ position. First of Nall, the question arises whether exemption\5 of the Freedom of Information Act is. available for matters discussed by or before an advisory committee. The exemption applies only to inter-agency or intra-agency letters or memoranda. Essential to Defendants’ case, then, is a finding either that the Advisory Committee is itself an “agency” or that it is within an “agency” of the Defense Department for purposes of the Federal Advisory Committee Act and the Freedom of Information Act. The Court cannot make such a finding, indeed, its present conclusion is to the c