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06/23/81 Fund For Constitutional v. National Archives and

June 23, 1981




Before McGOWAN and MacKINNON, Circuit Judges, and GASCH,* United States District Court Judge for the District of Columbia.


Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 76-1820).



This Freedom of Information Act *fn1 case presents questions of the scope and applicability of FOIA Exemption 7 *fn2 and Fed.R.Crim.P. 6(e), pertaining to grand jury secrecy, in conjunction with FOIA Exemption 3. *fn3 It also presents a question regarding the meaning of the requirement that a party "substantially prevail" as a prerequisite for an award of attorney fees under 5 U.S.C. § 552(a)(4). Because we have concluded that the district court properly applied the claimed exemptions to the information here in question, we affirm the judgment insofar as it found that this information is properly withheld. *fn4 Because, however, we have also concluded that the district court underestimated the causative impact of this litigation on the voluntary release of a substantial number of documents, we remand the case to the district court for further consideration of the question of attorney fees. I. BACKGROUND

At issue in this litigation are approximately five hundred thousand pages of documents *fn5 generated in the course of six investigations conducted by the Watergate Special Prosecution Force . By letter dated November 18, 1975, appellant Fund for Constitutional Government requested that WSPF produce for inspection and copying "all non-exempt records of of the investigations which it carried out from May 25, 1973 to October 15, 1975, and which are no longer in process." *fn6 The then special prosecutor, Charles F. C. Ruff, advised FCG that he would have to deny the request because of its generality but that, within limits imposed by a reduced staff, the office would assist in formulating a more specific request. *fn7 FCG's reformulated request specifically sought release of information pertaining to: (1) investigations of "the 18 1/2 minute tape gap"; (2) the I.T.T. investigation; (3) investigations of corporate campaign contributions; (4) the "Townhouse" investigation; (5) the "Milk-Fund" investigation; and (6) the Hughes-Rebozo investigation. *fn8

Because even this limited request encompassed a massive number of documents, FCG agreed to allow WSPF more than the ten day time period prescribed by 5 U.S.C. § 552(a)(6)to respond fully to its request. After reviewing the entire "Townhouse" file, WSPF released a few documents but withheld the vast majority in reliance on one or more FOIA exemptions. FCG requested immediate review of representative documents from the I.T.T. and Hughes-Rebozo files. After these requests were treated in a similar fashion, FCG commenced this action in the district court on September 30, 1976.

Shortly after filing the complaint, FCG made a motion to require WSPF to produce an index of the withheld documents in accordance with the dictates of Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974). WSPF opposed the Vaughn motion and moved for a stay of proceedings in accordance with 5 U.S.C. § 552(a)(6). *fn9 In reliance on this Court's decision in Open America v. Watergate Special Prosecution Force, 178 U.S.App.D.C. 308, 547 F.2d 605 (1976),10 the district court granted WSPF's motion.

In April 1977, FCG suggested that, rather than continue a document by document review, WSPF review the closing memoranda of each of the six investigations. Shortly after the parties had struck this agreement, WSPF was finally terminated and custody of the documents was transferred to the National Archives and Records Service . NARS completed the review of the closing memoranda, including those of the Townhouse file, the I.T.T. file and the Hughes-Rebozo file which had previously been reviewed by WSPF. As a result of this review, a substantial amount of information not previously made available was released.

As to the information still being withheld, NARS filed affidavits, detailed Vaughn indices and copies of the redacted documents with the district court. NARS moved for summary judgment on March 3, 1978. In a thorough memorandum, the district court, treating the motion as one for partial summary judgment,11 ordered the release of certain documents to FCG12 but upheld the claimed exemptions as to the majority of the information. Fund for Constitutional Government v. National Archives and Records Service, 485 F. Supp. 1 (D.D.C.1978). Subsequently, the district court ordered the entry of final judgment while retaining jurisdiction to monitor compliance with its prior orders. J.A. at 135-36. II. ARGUMENT

A. Exemptions Pursuant to 5 U.S.C. § 552(b)(7)

NARS contends, and the district court concluded, that a substantial amount of information contained in these files is properly exempt from disclosure under FOIA Exemption 7. That section exempts from the FOIA mandatory disclosure requirements:

Matters that are


(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... constitute an unwarranted invasion of personal privacy ....

5 U.S.C. § 552(b)(7). FCG apparently concedes for the purpose of this appeal that the information in question is contained in "investigatory records compiled for law enforcement purposes."13

The district court upheld the invocation of Exemption 7for the following three general categories of information: (1) information which would reflect investigations of allegations of possible wrongdoing by individuals who were neither indicted nor prosecuted; (2) information which revealed facts pertaining to individuals who were not the targets of investigation; and (3) information which would reveal the identity of a confidential source.14

While the dominant objective of the FOIA is disclosure, Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 (1976); Vaughn v. Rosen, 157 U.S.App.D.C. at 343, 484 F.2d at 823, Congress made a considered judgment that under certain circumstances the public's right of access to governmental information should yield to the legitimate interest in personal privacy of individuals about whom the government maintains information for any of a variety of purposes. This Congressional judgment is embodied in FOIA Exemptions 7and 6,15 both of which provide an exemption from the Act's mandatory disclosure requirement for information which if released would result in an "unwarranted invasion of personal privacy." In determining the applicability of both, the court must undertake a balancing of the public interest in disclosure on the one side and the individual's interest in privacy on the other. See, e. g., Department of the Air Force v. Rose, 425 U.S. at 372, 96 S. Ct. at 1604; Lesar v. U.S. Department of Justice, 204 U.S.App.D.C. 200, 636 F.2d 472, 486 (1980); Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1136 (4th Cir. 1977) (per curiam).

Appellant contends that the district court failed to properly balance these competing interests in this case. Appellant argues that most of the information in question was not properly within Exemption 7because the individuals to whom it relates are high level government and corporate officials whose interest in privacy is at best minimal. FCG further urges that, in any event, this type of information is not of the type contemplated by the FOIA privacy exemptions. Finally, FCG argues that the district court underestimated the public interest in disclosure of this information.

At the outset, it should be noted that, while similar in scope and application, Exemptions 6 and 7 of the FOIA are distinguishable in two significant respects. First, while Exemption 6 refers to "a clearly unwarranted invasion of personal privacy," Exemption 7"s reference is to an "unwarranted invasion of personal privacy." The omission of the word "clearly" from the Exemption 7standard was a considered choice made during the passage of the 1974 amendments to that section, Pub.L. No. 93-502, § 2(b), 88 Stat. 1563,16 and was intended to provide somewhat broader protection for privacy interests under Exemption 7than normally afforded under Exemption 6. Department of the Air Force v. Rose, 425 U.S. at 378-79 n.16, 96 S. Ct. at 1607; Congressional News Syndicate v. U.S. Department of Justice, 438 F. Supp. 538, 541 (D.D.C.1977). While we do not attempt to quantify this distinction, we do observe its utility as a relevant benchmark.

Second, the threshold criterion governing applicability of FOIA Exemption 6 is that the information be contained in personnel medical or similar files. By contrast, Exemption 7 is applicable to information contained in "investigatory records compiled for law enforcement purposes." In Exemption 6 cases, applicability of the exemption has been limited to information of an intimate or personal nature similar to that usually contained in an individual's personnel or medical files. See Department of the Air Force v. Rose, 425 U.S. at 377, 96 S. Ct. at 1606; Board of Trade v. CFTC, 200 U.S.App.D.C. 339, 346, 627 F.2d 392, 399 (1980). It appears, however, that this limitation is imposed by the specific threshold criterion of Exemption 6, see Board of Trade v. CFTC, 200 U.S.App.D.C. at 345, 627 F.2d at 398, and does not consequently place a similar limitation on invocation of the personal privacy provision of Exemption 7.

Furthermore, this second distinction serves to illuminate the reasoning behind the first. As Judge Pratt observed in Congressional News Syndicate v. United States Department of Justice, 438 F. Supp. 538 (D.D.C.1977):

The difference in breadth in turn is attributable to the inherent distinctions between investigatory files and personnel, medical and similar files; that an individual's name appears in files of the latter kind, without more, will probably not engender comment and speculation, while, as the government argues here, an individual whose name surfaces in connection with an investigation may without more, become the subject of rumor and innuendo.

438 F. Supp. at 541. Thus, it is apparent that, contrary to appellant's contention, information in an investigatory file tending to indicate that a named individual has been investigated for suspected criminal activity is, at least as a threshold matter, an appropriate subject for exemption under 7. Baez v. Department of Justice, 208 U.S.App.D.C. 199, 209, 647 F.2d 1328, 1338 (1980); Kuehnert v. FBI, 620 F.2d 662, 667 (8th Cir. 1980) (citing Librach v. FBI, 587 F.2d 372, 373 (8th Cir. 1978), cert. denied, 440 U.S. 910, 99 S. Ct. 1222, 59 L. Ed. 2d 459 (1979); Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977)).17

Having determined that this information falls within the threshold requirements of Exemption 7, the question remains whether the district court properly struck the balance between the public interest in disclosure and the individual's interest in privacy. The traditional role of the prosecutor in our criminal justice system ...

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