Jackson v. Virginia, 443 U.S. 307 (1979)

·X•Briefs of amici curiae urging affirmance were fil<'<l by George Deukmejian, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold 0. Overoye, Assistant Attorney General, and Eddie T. Keller, Willard F. Jones, and Jane K. Fischer, Deputy Attorneys General, for the State of California; by Arthur K. Bolton, Attorney General, Robert S. Stubbs fl, Executive Assistant Attorney General, Don A. Langham, First Assistant Attorney General, John C. Walden, Senior Assistant Attorney General, and Susan V. Boleyn, Assistant Attorney General, for the State of Georgia; by Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas L. Casey, Assistant Attorney General, for the State of Michigan; and for their re.spective States by Theodore L. Sendak, Attorney General, David A. Arthur, Deputy Attorney General, and Donald P. Bogard, of Indiana, Robert B. Hansen, Attorney General of Utah, Edward G. !Jiester, Jr., Attorney General of Pennsylvania, Paul L. Douglas, Attorney General of Nebraska, and Chauncey H. Browning, Attorney General of West Virginia. p. 309307 Opinion of the Court

That the petitioner had shot and killed Mr::;.. Cole was not in dispute at the trial. The State's evidenc<> established that p. 310she had been a member of the staff at the local county jail, that she had befriended him while he was imprisoned there on a disorderly conduct charge, and that when he was released she had arranged for him to live in the home of her son and daughter-in-law. Testimony by her relatives indicated that on the day of the killing the petitioner had been drinking and had spent a great deal of time shooting at targets with his revolver. Late in the afternoon, according to their testimony, he had unsuccessfully attempted to talk the victim into driving him to North Carolina. She did drive the petitioner to a local diner. There the two were observed by several police officers, who testified that both the petitioner and the victim had been drinking. The two were observed by a deputy sheriff as they were prepa.ring to leave the diner in her car. The petitioner was then in possession of his revolver, and the sheriff also observed a kitchen knife in the automobile. The sheriff testified that he had offered to keep the revolver until the petitioner sobered up, but that the latter had indicated that this would be unnecessary since he and the victim were about to engage in sexual a.ctivity.

After shooting Mrs. Cole, the petitioner drove her car to North Carolina, where, after a short trip to Florida, he was arrested several days later. In a post.arrest statement, introduced in evidence by the prosecution, the petitioner admitted that he had shot the victim. He contended, however, that the shooting had been accidental. When asked to describe his condition at the time of the shooting, he indicated that he had not been drunk, but had been "pretty high." His p. 311story was that the victim had attacked him with a knife when he resisted her sexual advances. He said that he had defended himself by firing a number of warning shots into the ground, and had then reloaded his revolver. The victim, he said, then attempted to take the gun from him, and the gun "went off" in the ensuing struggle. He said that he fled without seeking help for the victim because he was afraid. At the trial, his position was that he had acted in self-defense. Alternatively, he claimed that in any event the State's own evidence showed that he had been too intoxicated to form the specific intent necessary under Virginia law to sustain a conviction of murder in the first degree.2

its order denying Jackson's petition, the Virginia Supreme Court stated it p. 313consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt. 439 U. S. 1001.

This is the first of our cases to expressly consider the question whether the due process standard recognized in Winship constitutionally protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion p. 314that every element of the crime has been established beyond a reasonable doubt. Upon examination of the fundamental differences between the constitutional underpinnings of Thompson v. Louisville, supra, and of In re Winship, supra, the answer to that question, we think, is clear.

The Court in Thompson explicitly stated that the due process right at issue did not concern a question of evidentiary "sufficiency." 362 U. S., at 199. The right established in In re Winship, however, clearly stands on a different footing. Winship involved an adjudication of juvenile delinquency made by a judge under a state statute providing that the prosecution must prove the conduct charged as delinquentwhich in Winship would have been a criminal offense if engaged in by an adult-by a preponderance of the evidence. p. 315Applying that standard, the judge was satisfied that the juvenile was "guilty," but he noted that the result might well have been different under a standard of proof beyond a reasonable doubt. In short, the record in Winship was not totally devoid of evidence of guilt.

The constitutional standard recognized in the Winship case was expressly phrased as one that protects an accused against a conviction except on "proof beyond a reasonable doubt ...." In subsequent cases discussing the reasonable-doubt standard, we have never departed from this definition of the rule or from p. 316the Winship understanding of the central purposes it serves. See, e. g., Ivan V. v. City of New York, 407 U.S. 203, 204; Lego v. Twomey, 404 U. S. 477, 486-487; Mullaney v. Wilbur, 421 U.S. 684; Patterson v. New York, 432 U.S. 197; Cool v. United States, 409 U. S. 100, 104. In short, Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.

The Winship doctrine requires more than simply a trial p. 317ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence.8 A "reasonable doubt," at a minimum, is one based upon "reason."9 Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a federal trial, such an occurrence has traditionally been deemed to require reversal of the conviction. Glasser v. United States, 315 U. S. 60, 80; Bronston v. United States, 409 U. S. 352. See also, e.g., Curley v. United States, 81 U.S. App. D. C. 389, 392-393, 160 F. 2d 229, 232-233.10 Under Winship, which established p. 318proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand.

l1 Until 1972, the Court of Appeals for the Second Circuit took the position advanced today by the opinion concurring in the judgment that the beyond-a-reasonable-doubt standard is merely descriptive of the state of mind required of the factfinder in a criminal case and not of the actual quantum and quality of proof necessary to support a criminal conviction. Thus, that court held that in a jury trial the judge need not distinguish between criminal and civil cases for the purpose of ruling on a motion for judgment of acquittal. United States v. Feinberg, 140 F. 2d 592, 594. In United States v. Taylor, 464 F. 2d 240 (CA2), Feinberg was overruled, partly on the strength of Winship. The Taylor court adopted the directed-verdict criterion articulated in Curley v. United States, 81 U. 8. App. D. C. 389, 392-393, 160 F. 2d 229, 232-233 (If "reasonable" jurors "must necessarily have ... a reasonable doubt" as to guilt, the judge "must require acquittal, because no other result is permissible within the p. 319itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Woodby v. INS, 385 U. S., at 282 (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U. S., at 362. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defend ant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.12 The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law.13

was actually reached. Just as the standard announced today does not permit a court to make its own subjective determination of guilt or innocence, it docs not require scrutiny of the reasoning process actually used by the factfinder-if known. See generally 3 F. Wharton, Criminal Procedure § 520 (12th ed. 1975 and Supp. 1978). p. 321307 Opinion of t.he Court

First, the burden that is likely to follow from acceptance of the Winship standard has, we think, been exaggerated. Federal-court challenges to the eviclentiary support for state convictions have since Thompson been dealt with under § 2254. E. g., Freeman v. Stone, 444 F. 2d 113 (CA9); Grieco v. p. 322Meachum, 533 F. 2d 713 (CAI); Williams v. Peyton, 414 F. 2d 776 (CA4). A more stringent standard will expand the contours of this type of claim, but will not create an entirely new class of cases cognizable on federal habeas corpus. Furthermore, most meritorious challenges to constitutional sufficiency of the evidence undoubtedly will be recognized in the state courts, and, if the state courts have fully considered the issue of sufficiency, the task of a federal habeas court should not be difficult. Cf. Brown v. Allen, 344 U. S., at 463.15 And this type of claim can almost always be judged on the written record without need for an evidentiary hearing in the federal court.

..... p. 324is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar.

There was no question at the trial that the petitioner had fatally shot Mary Cole. The crucial factual dispute went to the sufficiency of the evidence to support a finding that he had specifically intended to kill her. This question, as the Court of Appeals recognized, must be gauged in the light of applicable Virginia law defining the element of premeditation. Under that law it is well settled that premeditation need not exist for any particular length of time, and that an intent to kill may be formed at the moment of the commission of the unlawful act. Commonwealth v. Brown, 90 Va. 671, 19 S. E. 447. From the circumstantial evidence in the record, it is p. 325clear that the trial judge could reasonably have found beyond a reasonable doubt that the petitioner did possess the necessary intent at or before the time of the killing.

Today the Court creates a new rule of law-one that has never prevailed in our jurisprudence. According to the Court, the Constitution now prohibits the criminal conviction of any person-including, apparently, a person against whom the facts have already been found beyond a reasonable doubt by a jury, a trial judge, and one or more levels of state appellate judges-except upon proof sufficient to convince a federal p. 327307 STEVENS, J ., concurring in judgment

What little evidence the Court marshals in favor of a contrary conclusion is unconvincing. See ante, at 317-318, n. 10. The Court is simply incorrect in implying that there are a significant number of occasions when federal convictions are p. 329overturned on appeal because no rational trier of fact could have found guilt beyond a reasonable doubt. The two opinions of this Court cited ante, at 317, stand for no such proposition. In neither was a conviction reversed for insufficiency. See Glasser v. United States, 315 U. S. 60; Bronston v. United States, 409 U. S. 352.

But nothing in the Winship opinion suggests that it also p. 331bore on appellate or habeas corpus procedures. Although it repeatedly emphasized the function of the reasonable-doubt standard as describing the requisite "subjective state of certitude" of the "factfinder,"2 it never mentioned the question of how appellate judges are to know whether the trier of fact really was convinced beyond a reasonable doubt, or, indeed, whether the factfinder was a "rational" person or group of persons.

Yioreover, the mode of analysis employed in Winship finds no counterpart in the Court's opinion in this case. For example, in Winship, the Court pointed out the breadth of both the historical and the current acceptance of the reasonabledoubt trial standard.3 In this case, by contrast, the Court p. 332candidly recognizes that the Federal Courts of Appeals have "generally" rejected the habeas standard that it adopts today. Ante, at 316.4

standard has prrvailed at the trial level "at least from our early years as a Nation" and that it "is now accepted in common law jurisdictions as the measure of pl:'rsuasion by whi<'h the prosecution must convince the trier of all the essential elrmC"nts of guilt." Id.,· at 361 (emphasis added). See also id., at 372 (Harlnn, J., concurring) ("It is only because of the nearly complete and long-standing acceptance of the rensonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation") (rmphasis added). p. 333New Hampshire, 414 U. S. 478; Douglas v. Buder, 412 U. S. 430; Gregory v. Chicago, 394 U. S. 111; Adderley v. Florida, 385 U. S. 39; Thompson v. Louisville, 362 U. S. 199. See also Clyatt v. United States, 197 U.S. 207,222.

Court's difficult-to-apply but largely unnecessary rnle will it,;elf result in a "collateral-attack ritual" that, will underminC' the integrity of both the state and federal judiciaries. See infra, at 336-339. p. 335this choice after Winship it should also allow the presumption that the Court has rejected-that trial judges and juries will act rationally and honestly in applying the reasonable-doubt standard, at least so long as the trial is free of procedural error and the record contains evidence tending to prove each of the elements of the offense.

state-court decisions, see Stone v. Powell, 428 U. S. 465, a like result in this case would seem to be a fortiori. p. 338ume of work of this character has already led some of our most distinguished lawyers to discontinue or reject service on the federal bench.13 The addition of a significant volume

"Mere iteration of process can do other kinds of damage. I could imagine nothing more subversive of a judge's sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else. Of course this does not mean that we should not have appea.ls. As we shall see, important functional and ethical purposes are served by allowing recourse to 3Jl appellate court in a unitary system, and to a federal supreme court in a federal system. The acute question is the effect it will have on a trial judge if vie then allow still further recourse where these purposes may no longer be rekvant. What seems so objectionable is second-guess-ing merely for the sake of second-guessing, in the service of the illusory notion that if we only try hard enough we will find the 'truth.'" Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 450-451 (1963). See also F. James, Civil Procedure 518 (1965). p. 339of pointless labor can only impair the quality of justice administered by federal judges and thereby undermine "the respect and confidence of the community in applications of the ... law." In re Winship, 397 U. S., at 364.

*Diane B. Cohn and Girardeau A. Spann filed a brief for the Reporters Committee for Freedom of the Press et al. as amici curiae urging affinnance. p. 343certain monetary policy directives from the public during the month they are in effect. At the end of the month, the directives are published in full in the Federal Register. The United States Court of Appeals for the District of Columbia Circuit held that this practice violates the Freedom of Information Act, 5 U. S. C. § 552. 184 U. S. App. D. C. 203, 565 F. 2d 778 ( 1977). We granted certiorari on the strength of the Committee's representations that this ruling could seriously interfere with the implementation of national monetary policy. 436 U.S. 917 (1978).

"(6) Interfere with, or impair the effectiveness of, financial transactions p. 344and investments.3 This in turn has a substantial impact on interest rates and investment activity in the economy as a whole.

The FOMC meets approximately once a month to review the overall state of the economy and consider the appropriate course of monetary and open market policy. The Committee's principal conclusions are embodied in a statement called the Domestic Policy Directive. The Directive summarizes the economic and monetary background of the FOMC's deliberations and indicates in general terms whether the Committee ·wishes to follow an expansionary, deflationary, or unchanged monetary policy in the period ahead. The Committee also attempts to agree on specific tolerance ranges p. 345for the growth in the money supply and for the federal funds rate.5 The recent practice of the Committee has been to include these tolerance ranges in the Domestic Policy Directive.6

In other ,vords, the Record of Policy Actions is published in the Federal Register aJmost as soon as it is drafted and approved in final form by the Committee.7 The Domestic p. 347Policy Directive, however, exists as a document for approximately one month before it makes its first public appearance as part of the Record of Policy Actions. Moreover, by the time the Domestic Policy Directive is released as part of the Record of Policy Actions, it has been supplanted by a new Directive and is no longer the current and effective policy of the FOMC.

year, the FOMC instituted a policy of releasing the Record of Policy Actions, including the Domestic Policy Directive, 90 days after the Directive was adopted by the Commission. Ibid. On March 21, 1975, just p. 348348 OCTOBER TERYI, 1978

sion were detailed minutes of the statements made and actions taken at the Committee's meetings. The District Court held that under 5 U. S. C. § 552 (b) (5) respondent was entitled to those parts of the :Memoranda that contained "reasonably segregable" statements of fart, 413 F. Supp., at 506, and the parties subsequently agreed on the factual portions of the Memoranda to be produced. This ruling was not challenged in the p. 349Domestic Policy Directive and tolerance ranges would make it difficult to implement limited or gradual changes in monetary policy. Disclosure of the FOMC's monetary policy objectives would have an immediate "announcement effect," as market participants moved quickly to adjust their holdings of Government securities in anticipation of purchases or sales by the System Open Market Account. This would result in sudden price and interest rate movements, which might be considerably larger than the Committee contemplated and might be beyond the power of the FOMC or the Federal Reserve to control.

Respondent submitted no counter-affidavits to these contentions, since he considered them "irrelevant" to the legal issues presented. Brief for Respondent 33-34, n. 12. The District Court apparently agreed. Without addressing the FOMC's affidavits, or entering any findings about the effect that premature disclosure might have on open market operations, the court granted summary judgment for respondent. 413 F. Supp. 494 (DC 1976). It held, as the FOMC had conceded. that the Domestic Policy Directives were "statements of general policy ... formulated and adopted by the agency" that, under 5 U. S. C. § 552 (a)(l)(D) , had to be "currently publish [ ed] in the Federal Register for the guidance of the public."10 It further concluded that by waiting until a new p. 350Directive had been promulgated before publishing the preceding one, the FOMC was in violation of the "current publication" requirement. 413 F. Supp., at 505. Finally, the court rejected the Committee's contentions that the Domestic Policy Directives could be withheld under either Exemption 2 of the FOIA, relating to internal personnel rules and practices of an agency, or Exemption 5, relating to inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with an agency.11

This Court has had frequent occasion to consider the FOIA,13and it is not necessary to describe its history and background in detail. It suffices to say that the purpose of the FOIA is "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delin- p. 352eated statutory language." S. Rep. Ko. 813, 89th Cong., 1st Sess., 3 (1965). The Act makes available to any person all agency records, which it divides into three categories: some must be currently published in the Federal Register, 5 U. S. C. § 552 (a)(l); others must be "pr::imptly publish[ed]" or made publicly available and indexed, § 552 (a) (2); and all others must be promptly furnished on request, § 552 (a) (3). It then defines nine specific categories of records to which the Act "does not apply." § 552 (b). The district court is given jurisdiction to enjoin an agency from withholding agency records, and to order the production of any agency records improperly withheld. § 552 (a)(4)(B). The burden in any such proceeding is on the agency to establish that the requested information is exempt. Ibid.

There can be little doubt that the FOMC's Domestic Policy Directives constitute "inter-agency or intra-agency memorandums or letters." FOMC is clearly an "agency" as that term is defined in the Administrative Procedure Act. 5 U.S. C. §§ 551 (1), 552 (e). And the Domestic Policy Directives are essentially the FOMC's written instructions to the Account Manager, a subordinate official of the agency. These instructions, although possibly of interest to members of the public, are binding only upon the Account Manager. The Directives do not establish rules that govern the adjudication of in- p. 353dividual rights, nor do they require particular conduct or forbearance by any member of the public. They are thus "intra-agency memorandums" within the meaning of Exemption 5.

We must reject this analysis. First, since the FOMC does not indicat€ that the asserted authority to defer disclosure of p. 354intra-agency memoranda rests on a privilege enjoyed by the Government in the civil discovery context, its argument is fundamentally at odds with the plain language of the statute. EPA v. Mink, 410 U.S., at 85-86; NLRB v. Sears, Roebuck & Co., 421 U. S., at 149. In addition, the Committee's argument proves too much. Such an interpretation of Exemption 5 would appear to allow an agency to withhold any memoranda, even those that contain final opinions and statements of policy, whenever the agency concluded that disclosure would not promote the "efficiency" of its operations or otherwise would not be in the "public interest." This would leave little, if anything, to FOIA's requirement of prompt disclosure, and would run counter to Congress' repeated rejection of any interpretation of the FOIA which would allow an agency to withhold information on the basis of some vague "public interest" standard. H. R. Rep. No. 1497, supra, at 5, 9; S. Rep. No. 813, supra, at 3, 5, 8; EPA v. Mink, 410 U. S., at 78-80.

Preliminarily, we note that it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery. See NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 254 n. 12 (1978) (PowELL, J., concurring in part and dissenting in part). There are, to be sure, statements in our cases construing Exemption 5 that imply as much. See, e. g., Renegot-iation Board v. Grumman Aircraft Corp., 421 U.S. 168, 184 (1975) ("Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and p. 355case law in the pretrial discovery context"). Heretofore, however, this Court has recognized only two privileges in Exemption 5, and, as NLRB v. Sears, Roebuck & Co., 421 U.S., at 150-154, emphasized, both these privileges are expressly mentioned in the legislative history of that Exemption.15 Moreover, material that may be subject to some other discovery privilege may also be exempt from disclosure under one of the other eight exemptions of FOIA, particularly Exemptions 1, 4, 6, and 7.16 We hesitate to construe Exemption 5 to incorporate a civil discovery privilege that would substantially duplicate another exemption. Given that Congress specifically recognized that certain discovery privileges were incorporated into Exemption 5, and dealt with other civil discovery privileges in exemptions other than Exemption 5, a claim that a privilege other than executive privilege or the attorney privilege is covered by Exemption 5 must be viewed with caution.

The most plausible of the three privileges asserted by the FOMC11 is based on Fed. Rule Civ. Proc. 26 (c)(7), which p. 356provides that a district court, "for good cause shown," may order "that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way."18 The Committee argues that the Domestic Policy Directives constitute "confidential ... commercial information," at least during the month in which they provide guidance to the Account Manager, and that they therefore would be privileged from civil discovery during this period.

this case, we do not consider whether either asserted privilege is incorporat€d in Exemption 5. p. 357we see no reason why the Government could not, in an appropriate case, obtain a protective order under Rule 26 (c)(7).19

In hearings that precedPd the Pnactment of the FOIA, various agencies complained that the original Senate bill, which did not include the present Exemption 5,20failed to p. 358provide sufficient protection for confidential commercial information and other information about Government business transactions. For example, the Department of Defense expressed concern that information relating to the purchase or sale of real estate, materials, or other property might not be protected, Hearings on S. 1160, etc., before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 418 (1965); the General Services Administration stressed the need to avoid early disclosure of information that might prejudice the ,Government's bargaining position in business transactions, ,id., at 480; and the Post Office Department urged that in matters such as the negotiation of contracts, it should stand on the same footing as a private party. Hearings on H. R. 5012, etc., before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 224 (1965). Included among those expressing such criticism was the Acting General Counsel of the Department of the Treasury, who specifically referred to the Department's concern about premat'ure disclosure of information concerning Federal Reserve open market operations. Id., at 49.21

This conclusion is reinforced by consideration of the clifferences bet,veen commercial information generated in the process of awarding a contract, and the type of material protected by executive privilege. The purpose of the privilege for predecisional deliberations is to insure that a decision- p. 360maker will receive the unimpeded advice of his associates. The theory is that if advice is revealed, associates may be reluctant to be candid and frank. It follows that documents shielded by executive privilege remain privileged even after the decision to which they pertain may have been effected, since disclosure at any time could inhibit the free flow of advice. including analysis, reports, and expression of opinion ·within the agency. The theory behind a privilege for confidential commercial information generated in the process of awarding a contract, however, is not that the flow of advice may be hampered, but that the Government will be placed at a competitive disadvantage or that the consummation of the contract may be endangered. Consequently, the rationale for protecting such information expires as soon as the contract is awarded or the offer withdrawn.

potentially eligible for protection under Exemption 5 does not conflict with the District Court's finding that the Directives are "statements of general policy ... formulated and adopted by the agency," which must be "currently publish[ed]" in the Federal Register pursuant to 5 U.S. C. §552 (a)(l). 413 F. Supp., at 504--505. It is true that in NLRB v. Sears, Roebuck & Co., we noted that there is an obvious relationship between Exemption 5 and the affirmative portion of the FOIA which requires the prompt disclosure and indexing of final opinions and statements of policy that have been adopted by the agency. 5 U. S. C. § 552 (a) (2). \Ve held that, with respect to final opinions, Exemption 5 can never apply; with respect to other documents covered by 5 U. S. C. § 552 (a) (2), we said that we would be "reluctant" to hold that the Exemption 5 privilege would ever apply. 421 U. S., at 153-154. These observations, however, were made in the course of a discussion of the privilege for predecisional communications. It should be obvious that the kind of mutually exclusive relationship between final opinions and statements of policy, on one hand, and predecisional communications, on the other, does not necessarily exist between final statements of policy and other Exemption 5 privileges. In this respect, we note that Sears itself held that a memorandum subject to the affirmative disclosure requirement of § 552 (a) (2) was nevertheless shielded from disclosure under Exemption 5 because it contained a privileged attorney's work product. 421 U.S., at 160. p. 362Manager in the execution of large-scale transactions in Government securities; they are, in this sense, the Government's buy-sell order to its broker.

Although the Domestic Policy Directives can fairly be described as containing confidential commercial information generated in the process of awarding a contract, it does not necessarily follow that they are protected against immediate disclosure in the civil discovery process. As with most evidentiary and discovery privileges recognized by law, "there is no absolute privilege for trade secrets and similar confidential information." 8 C. Wright & A. Miller, Federal Practice and Procedure§ 2043, p. 300 ( 1970); 4 J. Moore, Federal Practice ,i- 26.60 [ 4J, p. 26-242 (1970). Cf. United States v. Nixon, 418 U. S. 683, 705-707 (1974). "The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case \Veighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection." Advisory Committee's Notes on Fed. Rule Civ. Proc. 26, 28 U. S. C. App., p. 444; 4 J. Moore, Federal Practice ,i- 26.75, pp. 26--540 to 26-543 (1970).24 We are mindful that "the discovery rules can only be applied under Exemption 5 by way of rough analogies," EPA v. Mink, 410 U. S., at 86, and, in particular, that the individual FOIA appli- p. 363cant's need for information is not to be taken into account in determining ,vhether materials are exempt under Exemption 5. Ibid.; NLRB v. Sears, Roebuck & Co., 421 U. S., at 149 n. 16. Nevertheless, the sensitivity of the commercial secrets involved, and the harm that would be inflicted upon the Government by premature disclosure, should continue to serve as relevant criteria in determining the applicability of this Exemption 5 privilege. Accordingly, we think that if the Domestic Policy Directives contain sensitive information not otherwise available, and if immediate release of these Directives would significantly harm the Government's monetary functions or commercial interests, then a slight delay in the publication of the Directives, such as that authorized by 12 CFR § 271.5, would be permitted under Exemption 5.

25In its brief, the Committee argues that the "announcement effect" produced by immediate disclosure of the Directives and tolerance ranges would cause sharper fluctuations in the interest rates on Government securities traded by the System Open Market Account. As a result of these fluctuations, the risk of dealing in or purchasing Government securities would increase. To compensate for this larger risk, dealers and purchasers would demand a higher yield on Government securities. Given the huge amount of borrowing by the Federal Government each year, even a small change in yield on Government securities would represent a substantial cost to the Government. The F0~1C estimates that the cost might run as high as $300 million annually. Brief for Petitioner 29. p. 364364 OCTOBER TER:\I, 19i8

26See nn. 5 and 6, supra. *~fa. J.usTICE STEWART joins this dissenting opinion insofar as it expresses ,·iews concerning the "legal question" presented. p. 365to a selected few.1 On the legal level, I am satisfied that the District Court and the Court of Appeals correctly read the plain language of the Freedom of Information Act.

Although the Court recognizes that these policy directives may not be permanently withheld from public view without violating the Act, it nonetheless concludes that their tempo- p. 366rary suppression is warranted by one of the statutory exemptions to the Act. I find this conclusion incomprehensible.

First, the passage in the House Report that the Court relies on, which refers to "information which [an agency] has received or generated before it completes the process of awarding a contract," H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966), is rather clearly directed both at a different governmental activity (i. e., procurement of goods or services by the Government acting as commercial buyer) and at a different stage in the course of that activity (i. e., "before it completes [its] process") than is involved in this case. Here, the agency is engaged in a clearly governmental activity-the regulation of financial markets-and has already settled upon its final position and has acted upon it. Moreover, the absence in the Senate Report of even this thin reed to support the Court's analysis is significant in light of our recognition that that Report, rather than the House Report, is the most accurate reflection of the congressional will with respect to FOIA. Department of Air Force v. Rose, 425 U. S. 352, 363-367. Finally, the fact that Congress did include a "commercial information" exemption in the Act, albeit one that clearly does not apply in this case-Exemption 4-should persuasively counsel against our adopting a novel and strained interpretation of another exemption to encompass such information. This is particularly so in this case in view of the fact that the very agency involved here unsuccessfully requested that Congress amend the proposed Exemption 4 to provide protection for the policy directives involved in this case. Hearings on H. R. 5012, etc., before a Subcommittee of the House Committee on Govern- p. 367fundamentally, the Court's temporary exemption is inconsistent with the structure of the Act. Under FOIA, all information must be released, in the specified manner-i. e., in this case, "currently"-unless it fits into one of nine categories. As to material in those categories, the Act simply "does not apply." 5 U. S. C. § 552 (b) (emphasis added). Between "current" release and total exemption, therefore, the statute establishes no middle ground. Accordingly, I cannot agree with the Court's recognition of a third alternative for "exempt" material to which the Act nonetheless applies-albeit on a delayed basis. If there is to be a new category subject to full disclosure but only after a "slight delay," I believe it should be created by Congress rather than the Court.