St. Regis Paper Company v. United States (368 U.S. 208)/Dissent Black

Mr. Justice BLACK, with whom Mr. Justice WHITTAKER and Mr. Justice STEWART concur, dissenting.

I dissent from the Court' holding (1) that petitioner's copies of census reports submitted to the Census Bureau are not privileged from production by § 9 of the Census Act, and (2) that for its refusal to produce these copies and to answer certain of many questions asked it by the Federal Trade Commission, petitioner must pay a penalty of $100 for each day since that refusal up to the time, many months later, when this Court granted a stay as to future penalties.

First. Section 9(a) of the Census Act, set out in note 5 of the Court's opinion, with exceptions not here material, provides that neither the Secretary of Commerce, nor any other officer or employee of the Department of Commerce or any bureau or agency thereof, may use the information furnished in census reports except for census purposes, make any publication of the data contained in such reports as coming from the establishment or individual reporting it, or permit any person except officers and employees of the Census Bureau to examine such reports. Moreover, in securing from petitioner the very reports, copies of which are here being held subject to subpoena by the Federal Trade Commission as a step towards government regulation of the petitioner, the form supplied by the Census Bureau told petitioner:

'Your report is confidential and only sworn census employees     will have access to it. It cannot be used for purposes of     taxation, investigation or regulation.'

The President of the United States backed up these promises of Congress and the Census Bureau with a proclamation in which he stated unequivocally: 'No person can be harmed in any way by furnishing the information required.' 46 Stat. 3011, 3012. I agree with the Seventh Circuit Court of Appeals that 'These assurances of confidentiality and protection constitute a pledge of good faith on the part of the Congress, the President and the Department of Commerce.' Federal Trade Comm. v. Dilger, 276 F.2d 739, 744.

It is true, as the Court emphasizes, that although the Census Act, the Census Bureau and the President promised that the Census Bureau would kdeep census reports purely confidential, neither the Act, the Bureau nor the President literally promised in so many words that other government agencies such as the Federal Trade Commission would never subpoena and use copies of those reports prepared and kept in reliance upon the Government's promise of secrecy. The Court holds that, because the Government did not so expressly bind itself with respect to actions it may take against copies of these reports through the Federal Trade Commission, the solemn and comprehensive promises of secrecy which it made need not be honored. But surely the Government's promises, fairly construed, do not indicate that the scope of the protection afforded against the use of census reports 'for purposes of taxation, investigation or regulation' is limited to the originals of those reports and to the Census Bureau alone. That Bureau does not itself even engage in the activities against which the use of these reports is protected. Quite plainly, the promised protection was against governmental 'taxation, investigation or regulation' generally, and, to protect the integrity of that promise, it is of course necessary that all of the particular arms of Government which are engaged in those activities be bound by the Government's pledges. Our Government should not, by picayunish haggling over the scope of its promise, permit one of its arms to do that which, by any fair construction, the Government has given its word that no arm will do. It is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square corners in dealing with their Government. Cf. Rock Island, Arkansas & Louisiana R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188.

Second. The petitioner is being penalized $100 per day for its failure to produce copies of its census reports along with answers to certain of the voluminous questions propounded to it by the Federal Trade Commission. Many questions had already been answered prior to the time penalties began to run. The District Court has held that a very substantial number of the other questions asked need not be answered and I do not understand that this Court now holds otherwise. So far as the Commission's demand for production of the census reports is concerned, petitioner could quite reasonably have felt that it was under no obligation to comply because of the Government's numerous promises that these reports would be treated as confidential. Indeed, the very position taken by petitioner as to the privileged nature of its census reports was held to be correct in the Dilger case, decided just three weeks before the District Court decision in this case. All of this plainly shows, I think, that, with regard to some of the information sought, indeed a very substantial part of it, there was a serious, good-faith controversy concerning the Commission's power to compel disclosure. Under these circumstances I agree with the District Court's conclusion that these heavy statutory penalties should not have been imposed. It is practically the universal rule that laws imposing penalties of this kind should be strictly, not expansively, construed. Applying that standard, I am by no means sure that the penalty provisions of the statute upon which this judgment rests can be construed so as to justify the penalties here at all.

I would reverse this judgment.