Harold Weisberg v. U.S. Department of Justice
489 F.2d 1195
D.C. Cir.
1973
Check Treatment

*1 compelled have could the Government alibi

pretrial of the names of WEISBERG, Appellant, Harold including Fleming, witnesses, Miss The could of trial. Government advance U. S. DEPARTMENT OF JUSTICE. those witnesses then interviewed No. 71-1026. impeachment re- effort to obtain Appeals, United But Government States Court of buttal evidence. District of procedure. Columbia Circuit. of this did not avail itself rule which does Instead seeks a Rehearing En On Banc. helps but, rather, help surprise, it avoid Decided Oct. against its the áccused. it make case right defendant has a compel to the Fifth Amendment investigate ease, its own the state evidence, prove its own its own find help duty no defense

facts. prosecution convict defendant. reject rule therefore require defense turn over prosecution prior statements used

defense witnesses which could be against prosecution

by the as evidence

the accused.

Reversed. Judge,

MacKINNON, dissent- Circuit

ing: privilege in the of an

I see

investigator defense to the ex- for the

tent it contains statements of wit- defendant). (not I accord-

nesses

ingly properly believe or- the court Investigative produced.

dered it

reports required Government

to be turned over to the defense when

they contrary to contain facts tes- those apply

tified court and I would investigators

same standard to for the Since find no error in the

defense. accordingly I would affirm the

trial

judgment of conviction. rule, requirements respective tor shall serve defendant or his except good attorney shall, stating cause written notice Court testimony shown, wit- names and addresses of the exclude witnesses party rely de- as to the whom the intends ness offered Government at, from, presence presence establish the defendant’s fendant’s absence alleged This alleged offense.

scene of the scene of offense. (C) right de- limit TO rule FAILURE COMPLY: RIGHT shall behalf, testify in OF his own DEFENDANT TO TESTIFY. fendant Upon comply the failure of either *2 Fensterwald, Jr., Washing- Bernard ton, Lesar, C., D. whom James H. Washington, C., brief, on D. was appellant. Fleischer, Atty., Dept,

Walter H. Justice, Atty. with whom Asst. L. Gen. Gray, III, Patrick at the time the brief filed, Flannery, Thomas A. U. S. Atty., filed, at the time the brief was Titus, Jr., Atty., Harold H. U. S. Herwig, Atty., Dept, Barbara L. of Jus- tice, brief, appellee. were on the Rosenthal, Atty., Dept, Alan S. of Jus- tice, appearance ap- also entered an pellee. BAZELON, Judge,

Before: Chief DANAHER, Judge, Circuit Senior WRIGHT, TAMM, McGOWAN, LEV- MacKINNON, ENTHAL, ROBINSON, Judges, WILKEY, ROBB and Circuit sitting en banc.

ON EN BANC REHEARING Judge: DANAHER, Circuit Senior Relying upon 552(a)(3) of 5 U.S.C. § appel- Act, the Freedom of Information com- lant the district court pel materials com- disclosure of certain compared analyzed spectrographically appellant’s complaint paragraph 1. The following alleged items: had that after the assassination a) Kennedy stretcher the bullet found on the President November Kennedy or Governor either President the Federal Bureau Bureau of Investi- I. piled the Federal ' following gation the assassination Kennedy pronounced President Kennedy. Appellant late p. Friday, dead at m. on 1:00 November professional argued writer is a day, p. m., Lyn- That 2:38 treating published books four who don B. sworn in as the Johnson was Kennedy De- assassination. thirty-sixth *3 President the United the com- partment moved that of Justice immediately plane by States and left alternatively, or, for plaint be dismissed Washington. Texas for posi- summary judgment, predicating its Director testified Hoover before 552(b)(7) Act of the Section Warren Commission which, pertinent, provides: here as When President Johnson returned to apply to (b) not This section shall Washington he me communicated with matters law (7) enforcement [*] -* are [*] purposes files [*] compiled for .... [*] [*] - within the first you the Bureau to tion of the assassination risdiction are aware, for such an pick up there 24 hours is no federal investigation. because as and asked investiga- ju- opinion It is not a Federal crime to kill or at- district court without tack or the President Vice President granted motion continuity any officers satisfied dismiss.2 are presidency. who succeed clearly demonstrates record before us 3 part the desired materials Appellant argued brief compiled by the FBI FBI materials could com- been and, purposes, enforcement for piled purposes for law enforcement such, exempt from the disclosure since, in the State of Texas 1963 but sought Accordingly, compelled. we jurisdiction “had United over States crime.”5 He thus contended that he was affirm.4 analysis Connally (Identified Speetrographic bullet, frag- as Ex- Texas John objects, ments and other includ- of bullet hibit 399 of the President’s ing garments and curb- President Kenne- vehicle on the Assassination of dy, by stone said to have been bullet struck hereafter referred to as during Commission) ; fragments assassination and/or Kennedy wounding b) fragment of Gov- front cush- bullet from seat Connally. ; ernor ion of the President’s limousine c) fragment front bullet from beside appellant 4. The not to the De chose counter seat; partment’s support filed in of its affidavit d) fragments metal from the President’s (6) Rule failure motion dismiss for head; to state a claim granted, which relief could 1 e) fragment arm metal from the of Gov summary judg alternatively, Connally; ernor ment. fact was No material issue of f) fragments three metal recovered from Schuy presented See event. Irons ; carpet rear floor board of limousine ler, U.S.App.D.C. 23, 28, g) scrapings metal surface of from inside denied, cert. S.Ct. ; windshield of limousine (1972); L.Ed.2d Carter cf. h) Dealey scrapings metal from curb in Stanton, 405 U.S. 669 frag- by Plaza was struck bullet or (1972) ; see Nichols L.Ed.2d 569 ment. Cir..), (10 States, United argument Weisberg’s Following appeal, respective opinions L.Ed.2d a court divided our were vacated when entered we approved Au Pub.L. 89-141 rehearing en hanc. prescribed gust 28, 1965, penalties apply in cases of assassination Prior institution of action president ap- appellant’s officers of a and other identified denied General had accomplish conspiracies plication relief wherein dealt with administrative following: proscribed offense. described as “records” the scope investiga- “entitled to the material as a and detail law and not a matter of tive agencies matter of grace.” effort Federal State suggested part by sta- tistics Federal Bureau of In- Clearly, day all, time of in the vestigation and the Service. Secret contemplated collaboration the President Immediately after the assassination agents with Texas authorities person- more than 80 additional FBI Federal Bu- Secret and of the Service nel were transferred to the of- Dallas looking Investigation reau of temporary fice on assist in basis early ultimately apprehension and investigation. Beginning Novem- conviction whoever murdered Presi- ber the Federal Bureau of Kennedy. speedily It was devel- dent approximately conducted oped that the rifle from which assas- 25,000 interviews and reinterviews of sin’s had bullets been fired persons having *4 possi- information of shipped Harvey one The Lee Oswald. investigation ble relevance the and placed latter arrest and was under by September 11, 1964, submitted over charged perpetration the of the with 2,300 reports totaling approximately days later, investiga- crime. Two 25,400 pages to the Commission. got proportions tion of massive under During period the same the Secret way, Oswald, custody then in of Dal- the 1,550 approximately Service conducted Police, by fatally las one shot Jack reports and interviews submitted 800 Ruby. totaling 4,600 pages. some Director Hoover further testified be- fore the Warren Commission thus: beyond We deem demonstrated right However, the has a President to peradventure Department’s request special the Bureau make in- (1) investigatory nature; files: were vestigations, and in this instance he (2) and were for law enforce investigation asked that this be made. purposes.7 When much shall immediately assigned special a force established, have clearly as is so agent charge by special headed record, situation on this the dis Dallas, Texas, to initiate the inves- judge determine, trict shall so such files get tigation, and to details all exempt are compelled disclosure. concerning it, facts we obtain- which ed, prepared and then which a II. we submitted to the speaks While the statute itself in transmission to the President. respect consideration, may under we [Hearings before the Commis- legislative history note that addi- sion, p.5, 98.] Vol. tionally explains: glean understanding To some of the magnitude investigatory organiza- necessary very oper- It is also for the speedily activated, tion which was we ation of our Government to allow it to may keep material, turn Foreword of the War- confidential certain Report, xii, investigatory ren Commission from which as the files quote: Investigation.8 we Federal Bureau of By production Fed.Reg. Executive Order No. tendance of witnesses appointed Johnson evidence. Special a the Chairman- point with concerned We ship of Chief Justice Warren “to examine (7) “except” clause of subsection developed by the evidence Federal Bu- “except protects files reau of additional evi- a the extent available law to light dence that hereafter come to or be “par agency.” than an See the definition by federal uncovered Congress cooperated or state authorities.” ty” 551(3) and note § infra. passed Public Law Sess., S.Rep.No.813, Cong., at 3 approved 13, 1963, 89th 1st au- December H.R.Rep.No.1497, (1965) ; 89th thorizing require also see the át- Commission to “litigate slightly agen context when different forced to self Congres- sure, analyzed Judge Hays cies on the of secret laws in basis or complete purpose sional information.”10 We have re thus: peatedly appreciation made evident our agency’s If an principle generally of sure, disclo limitation after obtainable without investigation withholding, and not of informa concluded, future for, especially tion is called where there agency law enforcement efforts posture presented anis adversarial seriously hindered. The could be Bristol-Myers FTC, 138 U.S. Co. techniques agency’s App.D.C. 22, 25, 424 F.2d procedures he revealed. 27 L. people who volunteered names of (1970).11 ap remedy Ed.2d 52 But the prompted in- that had information propriately provided 552(a)(3) § initially vestigation or who contribut- every situation, not available in and as during the course of ed information previously noted, we investigation would be disclosed. explicit apply does possibility of sugh specifically exempted. matters agen- severely limit would tend investigation possibilities cies’ speaking are not here trade se these since enforcement agencies crets, personnel files, and medical large extent, rely, vol- patent information or internal revenue untary cooperation and on information returns, yet which, *5 other material (Emphasis add- from informants.9 105-60.604, (see, g., statute e. 41 CFR § ed). 1972), specifically exempted had been treating from geological not disclosure. are question that There can be no information or re matter pur principal 5 552 as its U.S.C. § quired by kept Executive se pose that there was to be disclosure discussing any prob cret. We not are public in of the manner which the except compelled lem that of conducts its business. Con Government of Federal in Bureau of gress additionally was concerned with ** public vestigatory it- compiled the dilemma in finds en- files Cong., (1966). Mink, Sess., Corp. Renegoti Engineering 2d at 6 EPA v. Aircraft v. 73, 80, 6, 827, Board, U.S.App.D.C. 410 ation 121, n. 92 S.Ct. 35 L.Ed. 157 482 F.2d (1973). 2d 119 Frankel v. Ex 710 Securities change 813, 817, (2 Commission, F.2d 460 see, generally, 1 1. And our discussion in Get Cir.), 882, denied, 93 cert. 409 U.S. S.Ct. Board, man v. National Labor Relations 146 125, (1972) ; 34 and see Cowles L.Ed.2d 146 U.S.App.D.C. 670, 209, 218, 450 F.2d 679-680 Department Communications, Jus Inc. v. (1 971) Sterling Drug, ; Inc. v. Federal tice, (N.D.Cal.1971), F.Supp. 726, 325 727 237, Commission, U.S.App.D.C. Trade 146 (where inspection in-camera was directed 244, (1971) 698, ; 450 F.2d Soucie v. 705 only not to ascertain whether or there David, U.S.App.D.C. 144, 154, 145 F.2d 448 file law en 1067, (1971) ; Schuyler, v. 151 1077 Irons purposes). And see Evans v. De forcement partment 608, denied, U.S.App.D.C. 23, F.2d cert. 465 Transportation of United 1076, 682, 409 U.S. 34 L.Ed.2d 664 93 S.Ct. States, 824, (5 821, 1, n. Cir. (1972) Engineering ; Grumman Aircraft 1971), 918, 92 cert. 405 U.S. Corp. Renegotiation Board, U.S.App. 138 984, (1972) B. 30 and N. L. R. L.Ed.2d 788 147, (1970). D.C. 425 F.2d 578 (5 Co., F.2d 1027 Clement Brothers 407 Nothing foregoing cases runs coun- 1969). Cir. Supreme ter Court’s treatment Exchange 827, Mink, 73, EPA Frankel v. Com- 93 S.Ct. 35 Securities mission, supra, (1973). F.2d at 818. L.Ed.2d note 119 ** Clothing Attorney pur- Company, Richardson, acting 10. Bannercraft Inc. v. Renegotiation Board, suant Or- Title 28 U.S.C. Section Fed.Reg. July (1972) granted, der No. (1973) ; and see Mail No. § 301] U.S. 907 American see [and U.S.App.D.C. 382, relating Gulick, regulations Line Ltd. v. has amended earlier (1969) compulsory ; exempted see also materials disclo- F.2d 696 Grumman from Certainly analyses purposes. an- foreement certain conducted on bullet ap- depend upon swer not what this evidence involved the assassination. does accomplish pellant access be desires to if grant regret I unable am has told us afforded. The Court your request in that the work notes terms, permit “by its the Act does analytical data on which the raw inquiry particularized needs into spectrographie are results of the tests seeking individual the information.” investigative based Mink, EPA v. 410 Ú.S. at specifically and are of the FBI files exempted background Against we have public in- disclosure as out, may appropri- we hereinbefore set ately turn, particularly vestigatory en- for law 'a frame of purposes. forcement correspondence reference, be- spectrograph- The results of the Depart- appellant and the tween the adequately ic shown tests prior ac- to the institution of this report of tion. (Volume 5, pages 67, 69, where 74) specifically it is forth that set May appellant, in This his letter fragments analyzed spec- metal to his attached as exhibit trographically and found to be similar Department complaint, submitted to-the composition. following: of Justice problem Our thus from what stems regard spectrographie With follows under the Freedom of Informa- it, you analysis, if are not aware of tion Act after General’s having your present not then process exercise of the decisional devolv- position, you 1’think should know that ing upon him. agree in min- it does most put interpretation ute detail with upon III. Commission, the Warren Justice, headed Report their fiction. Attorney General, 28 U.S.C. § *6 Appellant then transmitted the De- the Federal Bureau Investi includes gation, partment’s “Request Attorney For form entitled 28 531. The U.S.C. § charged directly U. General is under 28 To Official Record Under 5 U.S. Access duty acquire, with the to col S.C. 534 § 16,” 552(a) de- C. and 28 CFR Part classify preserve identification, lect, and scribing in our the material set forth identification, criminal crime and other swpra. at- footnote A further exhibit exchange records, and to such records complaint appellant’s dis- tached to the with and for the official use of autho date under closes only officials, rized government, federal of June wrote: cities. but States Analyses: Spectrographie You have So it was that Bureau collaborated spectrographie police.12 asked for access to the Dallas cooperation regularly as a sure Such follows under the Freedom of Act. Information 12. duty enforcement, may in- in matter of aid of law “Possible releases that considered be effort, scarcely magnitude under deed the realized, this section are at the sole discretion Attorney per- v. has been delineated Menard of the General and of those (D.D.C. Mitchell, F.Supp. 718, may authority 328 721-722 sons be to whom hereunder case, delegated.” 1971), following provides our remand access The Order for (1970). U.S.App.D.C. 113, F.2d 486 139 430 to investi- material within the Appropriations 88-245, gatory Public Law Cf. for law enforcement 1964, providing purposes years Federal funds Act of for “that are more than fifteen “protection subject Bureau of old” in- to certain deletions which person “(4) Investigatory pro- the United techniques President of of the States; of the clude preser- acquisition (Emphasis added) Compare . . . cedures.’’ text quoted records supra, and other vation of identification in Frankel v. and identified exchange with, Commission, the official Exchange and for and their 460 Securities duly of, officials 9, supra. authorized use F.2d at n.

1201 daily appreciation upon ac- Further discretion conferred him law. tivity may necessary in its seen He Bureau be must evaluate evidence judgment. annual FBI had to an informed He must de- developed 345,000 prosecute than items cide more whether He not. intelligence prosecute. dis- criminal which had been decide whom He must Federal, prosecute. lo- seminated to must decide state when to Func- agencies engaged belong in law enforcement. cal tions Execu- area 495,000 II, Constitution, than More examinations of evi- tive under Article and, here, specifical- FBI dence had been conducted Sections 1 as laboratory ly Attorney en- to law under 28 U. submitted General Organized agencies. problems forcement crime as S.C. Consider § ranged investigations throughout Pugach we find were assessed Klein, (S.D. respecting F.Supp. 630, disclo- Discretion 193 634-635 nation. N.Y.1961), Kennedy, de- sure of records such matters Moses v. Attorney nom., F.Supp. 762, volved aff’d sub Moreover, Katzenbach, U.S.App.D.C. of 28 virtue Moses § (b) thereof, ex- subsection As change may Wright gathered so there records said “subject if cancellation dissemination investigation .(cid:127) receiving depart- outside the adequacy these the execution of agencies,” ments or related juris- is not a within the laws matter provided. appear un- It to some judicial branch of this diction of thinkable the criminal Government. Investigation, files of Bureau States, purposes, see Newman v. United And law enforcement U.S.App.D.C. 263, open “person” F.2d are to be thrown to some Burg by present (opinion Chief Justice 551(2) as defined in as- who pros er, 1967). The General’s serts entitlement reliance broad, indeed, and 552(a)(3). appellant discretion is his ecutorial Yet our claims subject judi ordinarily “right” least, a matter of law in No- since vember, of Attica Correc Inmates cial review. not a crime federal Rockefeller, Facility F.2d only kill a tional sur- need President. (2 1973); v. Kat Powell Cir. consequences mise the to law enforce- zenbach, knowing any “person,” full well (D.C.Cir. 1965), investigation that an has been conduct- 349 16 L.Ed.2d ed, compel 86 S.Ct. can ask federal some court *7 462, , Ragen, (1966); Touhy 340 U.S. of disclosure the Bureau’s files. 95 L.Ed. 71 S.Ct. Obviously, statutory or- scheme of Richardson, 156 (1951); Adams cf. ganization, to, referred calls as above (en U.S.App.D.C. F.2d 1159 by At- for the exercise discretion suggested 12, 1973); banc, we but June torney respecting execution of immunity respecting the exercise that him, devolving the duties were unavailable be well discretion through him, Bureau Federal investiga under to be Investigation. We have no doubt grand jury by when a court or Congress fully whatever alive that involved, might corruption be fraud or problem where Responsibility, for Nuclear Committee of the FBI involved. Seaborg, Inc. (1971). But Congress knows full well that (5 301 as certain, is much Attorney in the first Gener instance At- 379), the myriad 89-554, 80 Stat. Pub.L. al in must situations exercise receiving de- , outside semination ex- . . States partments.”

change subject if dis- to cancellation be opinion, at 410 U.S. emption (b)(1), its General, heads of torney like the 834, emphasized: 84, 93 at S.Ct. authorized departments,, Executive Exemption 7 under disclosure far makes to refuse said thus has been What is- that the here determine wholly if he could that claim untenable investigatory files subject sue involved the soundness intended to Act purposes. security for law enforcement classifications executive judicial at the insistence review (cid:127) any objecting citizen. IV. chal- room for There was to be no surely disclo- that Congress realized “balancing” function, no lenge, no required in certain not to be sure was Rather, upon the inspection. ba- camera example, For prescribed classifications. “showing in such circum- sis 552(b) provided the section that section stances, petitioners had met their bur- apply to matters whole was as a demonstrating docu- that den of exempted from (3) “specifically that are protection under ments were entitled See, illustra- by statute.” disclosure duty Exemption of the Dis- and the tive, in 41 CFR § identified the statutes 552(a)(3) under was there- trict Court 105-60.604 Mink, 410 fore EPA v. at end.” exempted 552(b)(1) Again, section at 835. 93 S.Ct. re- “specifically matters from disclosure very strikingly case, In that different kept se- by to be quired order Executive prescribed ex- treatment was even as to de- national interest cret claimed to be immune ecutive materials very foreign lan- policy.” That fense Exemption disclosure guage gave which this issue to an rise seq., Mink, EPA v. 85 et U.S. at considered, followed court first applicability Exemp- 827. The pronounce- Supreme definitive Court’s ultimately upon tion 7 no will turn less steps re- taken ments as to determination the district court14 coming specting of materials required that disclosure is not —as Ruling 552(b)(5). within section the instant case. section,13 misapplied the Court we reversed, Mink, EPA v. Attorney Granted Gen observ- L.Ed.2d 119 may designate eral certain ing a review after S.Ct. at 833 having files as for law en legislative history, ipse purposes, forcement his dixit does standard, vague than some Rather matter, not finalize for there re simply whether the test was judicial mains determin function of executive, has determined ing prop whether that classification be particular documents er. court can con Where district language of the kept secret. desig clude that General’s sufficiently in this clear Act itself correct, nation and classification legislative history dis- respect, but requires Act Freedom of Information argument possible poses overwhelmingly Here the record more. In- the Freedom intended cir demonstrates how and under what subject se- executive Act to formation *8 were and cumstances files judicial curity re- to classifications “investigatory they that indeed anyone who of view the insistence at pur for law enforcement might question to them. seek poses.” When the District correctly per determination, to the Su- that he doubt as there be Lest teaching duty achieving respecting Ex- the will preme ceived that his in Court’s ally Agency, Vaughn Rosen, 13. Protection Mink v. Environmental discussion in v. (1971). U.S.App.D.C. 233, 340, (Aug. 20, 464 F.2d 742 484 F.2d 820 1973). Communications, v. De- 14. Inc. Cf. Cowles gener- supra, n. 8. partment Justice, of See policy.” legislative Freedom of In- of On the basis of the history explicit statutory formation Act was at an end.15 and the lan- guage, majority concluded that Thus he ruled that there was claim “Congress chose to follow the Execu- granted, could be that which relief in tive’s determinations matters these any material there was no issue as to Rather than some follow fact, enti- and that was vague standard, the test to be sim- was judgment a matter of law.16 tled to as ply whether the President deter- thereupon The action was dismissed. by particu- mined Executive Order that Affirmed. kept lar documents are to secret.” case, Weisberg appellant dissenting: seeks Judge, BAZELON, Chief following information: Agency In Environmental Protection Spectrographic analysis bullet, writing of White, Mink,1 Mr. Justice fragments objects, of bullet and other Court, reviewed majority a of including garments vehicle legislative history of of one section said to curbstone have been Act, which Information that Freedom of by fragments struck bullet exempts “matters that from disclosure and/or during assassination of by (1) specifically required Execu- Kennedy wounding of kept Governor in the inter- tive order to be secret Connally. foreign of defense or est the national 552(b)(3). opinion argued appellant Pub.L. 89- The cited also Oswald This brought trial, where 79 Stat. November had and had been to lived acting spectro- legal right in “the national a to the would have had graphic by designated analyses question, interest” evidence considered and ac- in here preserved.” cordingly Weisberg the Warren to “be Commission be accorded must pursuant equal right. of that Act so Such evidence to § claim 4 jurisdiction He based this placed (7) appears (b) under the in much of subsection “except Administrator General Services extent available clause regula preservation agency.” under such rules and Aside to a than an prescribe. might prose- tions the Administrator was no such from the fact there (See 105-60.101, generally, cution, “right” §§ § have been CFR Oswald’s would 105-60.601, 60.604; recognized only 60.602 and Vol. extent the want- Record, 17, 23,002 Congressional 89th Part “available ed law,” material could have 1965). Cong. Sess., Sept. 7, “party” only 1st himself as and then 551(3). appellant more—that court found —without in This does as defined § clearly regulations “party.” within rules definition of not come within the grant authority import language Pub.L. discussed of this sought came Nichols Mink, the materials in EPA U.S. exemption 552(b) (3). within the allowed indeed the Court Concerning “Regulations [Special Proce- public only “a materials as access litigation private party dures Reference Service in discover could Evidence,” ap- agency.” and Related Items The short answer with the Group 272, pro- pellant’s respect Record National Archives that he does in claim this part, materials in vide subsection Act. He come within the terms of techniques subjected agency, engaged litigation which have been was not “will be with- examination detailed scientific and neither was Oswald. pro- as a means held from researchers States, 460 F.2d 671 Nichols United Cf. damage possible physical tecting them from (10 Cir.), 93 S. preserve their or alteration (1972). L.Ed.2d 232 Ct. evidentiary integrity fur- event of spec- sought appellant test Our investigation assassina- ther official (listed analyses trographic materials Kennedy.”] F. President John tion of 3, supra) items certain not unlike our n. 35 L.Ed.2d Nichols, supra. There listed note own scientif- make his Nichols had material, analysis described ic 552(b) (1) (1970). *9 2. exempted specifically found to be court at 833. by statute, pointing 93 S.Ct. 3. 410 from disclosure case, originally an panel this heard Weisberg’s request for response to In opinion and which I concurred Depart- in which information, the Justice or- the case was when withdrawn ment stated: forth I set reheard en banc. dered to be raw work notes that the Judge part Kauf- here central analytical results on which data opinion: man’s are spectrographic are tests based investigative files of Bristol-Myers Company T. v. F. exempted specifically and are FBI U.S.App.D.C. 22], 424 F.2d C. [138 investigato- public as disclosures (D.C.Cir.), 939-40 ry law enforcement for L.Ed.2d [91 400 U.S. 824 552(b)(7). The purposes. 5 U.S.C. Bazelon, (1970), Judge Chief 52] reversing spectrographic are tests results of adequately grant of a motion to report in the shown plaintiff’s In Freedom dismiss (Volume 5, where Commission Warren complaint, in com formation Act 74) specifi- pages 67, 69, is menting upon the frag- cally the metal set forth 552(b) (7) exemption, wrote: analyzed spectrographi- ments * * * cannot, agency con- [T]he eally in com- be similar and found to man- sistent with the broad disclosure position. Act, protect date all its files case, Thus, not with we deal in this “investigatory” and a with the label (1), but Section Section . suggestion proceed- that enforcement provision 552(b)(7). ex- latter ings may unspeci- be launched at some empts “matters that are from disclosure fied future date. Thus the District investigatory files Court must determine whether except purposes for law enforcement prospect proceedings is of enforcement law the extent available enough bring opera- concrete into agency.” doubt I no other than exemption tion the Judge majority opin- that, as Danaher’s files, particular and if so whether the concludes, the information ion sought by company documents lodged originally file in a this case is compiled nevertheless discoverable. purposes. enforcement agree case, criminal major- In the within cannot, however, with the relating brings automatically action to the death of ity civil this fact Kennedy pending nor is the information within the ambit of Sec- it any 552(b)(7). indicated Government There remains contemplated question such future action is information is whether such Weisberg resting solely by anyone. Nor is the sub- considered within ject investigation. “investigative simply He file” when results alleges spectrographic he asks for information which tests have been public available in the entitled to have made 552(a)(3). to him under no indication when there is U.S.C. § contemplates language use of the in- support- Government of Section purposes. formation for law enforcement legislative abundantly by histo- ed ry the Freedom of Information my support position The reasons that Act,6 Judge places the burden on the Govern- fully stated Frank show, opinion majority why Kaufman’s4 non-revelation Judge Cong., S.Rep.No.813, District for the 1st United States Dis 89th Sess. Judge Report. Maryland; trict of Kaufman sat hereinafter cited Senate pursuant designation Report this case to 28 U.S. House 292(d) §C. opinion 5. The footnotes of Kaufman’s have been renumbered.

1205 Analysis, Preliminary. requires mation A that Act: permitted, and be should 761, 34 narrow U.Chi.L.Rev. 783 exemptions be ambiguities be ly that construed * * * * -x- * See in favor of disclosure. resolved granted the The Court below Gov- B. generally [146 R. v. N. L. Getman dismiss, not motion its ernment’s 670, 209], 672 U.S.App.D.C. F.2d 450 summary judgment. Thus, motion for 1971); (D.C.Cir. David [151 Soucie v. seemingly weight it accorded no 1067, 144], 448 F.2d Agent But affidavit Williams.7 v. (D.C.Cir. 1971); Wellford 1080 given full even if affidavit is that (4th Hardin, Cir. 25 444 consideration, which it a document is Bristol-Myers Company 1971); v. F. general conclusory is most Shapiro supra 938-40; C., M. A. at T. way explains dis- no how the Exchange & v. & Securities Co. likely closure of the records is F.Supp. 467, Comm’n, identity to reveal of confidential (D.D.C.1972); Mans LaMorte v. subject persons cf. informants, or to 1971) (2d field, Cir. 438 F.2d 448 blackmail, or the names to disclose J.). Har (Friendly, Wellford any way suspects, criminal or supra com din, Butzner at efficiency.8 con- hinder F.B.I. provides 552(c) mented that 5 U.S.C. § Weisberg clusion that the disclosure “ authorize ‘does not the Act seeks will cause of those is harms withholding limit of information compelled readily appar- neither nor pub availability of records to ent, satisfy and therefore not does ” lic, except specifically stated’ proving burden of emphasis upon noted Professor Davis’ “ Depart- 552(b)(7), as the § pull “specifically” fearing of the word must, ‘[t]he some basis Davis, The Infor- .’” K. harm.9 Neither nor F.B.I. Weisberg parts proof placed upon contends that certain “The is burden agency justi qualify only party affidavit do not which is the Williams’ able to fy withholding.” Report consideration under Federal Civil Rule 56. at 9. House contentions, remand, should, specific wording And see Those on of 5 U.S.C. Weisberg desires, brought 552(a)(3) may the atten- be be .... While introductory tion of the District Court. words of Section 552(b) proof provisions make the burden of may generally 552(a)(3) inapplicable 8. An F.B.I. file in deter Section excep organized mining relate or other crime whether the Section originally contrary approach apply intended for use in tions {but have been see the concurring prosecution individuals, or, opinions, majority, taken in all named longer originally intended, may dissenting, even if so no Protection Environmental Agency al., intended for such use. The data con et al. Mink et may, however, require and the tained such a file L.Ed.2d up protection secrecy dry assumption seeming so as not to Ninth Circuit’s pose contrary Epstein Resor, future sources of 421 F.2d information or danger persons supplied (9th 1970)), in contention who Cir. prevent personal way compels any formation or to invasion of than different conclusions appear privacy. 552(b)(7) expressed opinion. those lying philosophy in this The under sufficiently pro its dis flexible to include within 552 favors Section Report such an tection file when closure. See at 3. Section Senate protection required. 552(c) provides if such Frankel v. 552 “does Section Exchange Commission, withholding F. limit Securities & authorize of information (2d 1972) Depart public, ; availability 2d 813 ex Cir. Evans v. of records to the Transportation, cept specifically ment of 823- in this section.” stated (5th 1971), pp. supra See the re Well- Cir. decision at 7-8 (1972) ; Hardin, supra. ford v. 30 L.Ed.2d 788 The thrust Sec Communications, 552(c) exceptions dis Cowles Inc. v. from the (N.D.Calif. Justice, provisions F.Supp. closure 552 are to be of Section inspec 1971). instances, carefully Report In such in camera construed. See House appro might 11; Report place tion priate. the District Court To the bur Senate at 10. proof plaintiff prove n. den [11]. See discussion infra *11 governmental agency agree Judge can I continue to with Kauf- purpose simply that man shoulder burden stat- that the Act should ing aas matter of that it so not fact be defeated there is has available a labelling judicial simply advancing technique done, or as investi- for it and gatory ensuring a file which neither intends at the time it same that no harm making contemplates use, to nor use comes to the interests intended of, protect. in the to inspection, future for law enforcement In camera re- purposes, quired by at not without least estab- the remand of the with- lishing opinion, the of technique. nature some harm drawn is such a likely Mink, public that, Supreme is to from fact in result the Court Something language legis- disclosure of the file. determined that the labelling history (b)(1) more than mere or lative edict is of the Section ex- required emption permit if the of Freedom Informa- did not the use in of accomplish “primary inspection camera Act is to its does not mean that purpose, e., technique i. the every ‘to increase the citizen’s is in unsuitable ” 10 government involving to (b) (7) records.’ case access the Section exemption.11 Indeed, its use most seems was, course, The above in of written it, suitable in this the Without case. of of context this case. facts public rely entirely upon will perhaps, most cases the Government opinion Justice that satisfy proof simply by its burden es- spectrographic “[t]he results tablishing that the information adequately tests in shown ” purposes of the Warren . . Commission. file, in an rests none suggest I enacting Congress, in of the contents of which have ever been Freedom of Information Act did in- not public. But the case public is tend that would so have to rely. here. See partment of H. & U. over, placing justify Judge 1180 tions, nonapplicability 552(c). plaintiff equally applicable tionship among 552(a)(3), an erly vate knowledge Section burden House port such an tion when the Getman agency F.Supp. [*] Philadelphia Newspapers, because at 8. specifically in which citizen cannot be asked Inc. v. (E.D.Pa.1972) ; underlying philosophy Report Bazelon’s agency 552(a)(3), exception would also proof philosophy That same [*] withholding N. L. R. nearly which, action.” withheld Judge of a Government will not of Section opinion would burden stated [*] all the placed seemingly of all in D., Section determining B., reasoning Wright quoted Cowles information See explaining know the reasons (at on the facts relevant [*] set forth in the also Senate contrary 552(c). 552(b)(7) information as a rule has Justice, supra, 552(b) excep- Bristol-Myers. F.Supp. proof 9): run Inc. v. De Section Communica would seem prove agency the rela- supra contrary why ¡¡! “A improp- on the More- pri- Re- in 11. As intelligence such a the withdrawn ies. A And port phasis records, quantity know what ety ronmental Protection nection 552(b) (5) exempting “inter-agency tra-agency memorandums other agency”, matter cy, (b) (5) exemption upon the Government. “For [I]n this Emphasis supplied. * * informed, in see at 12: is asserted to be burden Judge than » danger the United supplied), also political Mr. Justice White noted ease national public its Kaufman observed “A quality great intelligent opinion, signal available agency Government no Executive showing democratic “conclusion” application as a truism needs Senate electorate varies as the States is defense majority to our democratic soci- involved. Agency whole its electorate, remanding entitlement litigation Report information law to a society requires or of 5 U.S.C. has a order, the fact in letters which in the Envi- of different foreign poli- doing” (em- case Further, House Re- repeating. note 8 of with the at right and no placed con- var- 5-6. in- dissent, Accordingly, and continue ex- issue views adhere ma- in his

pressed by Kaufman panel. opinion

jority *12 INDIANS TRIBE OF

The CHEMEHUEVI Petitioners, al., et COMMISSION, POWER

FEDERAL Respondent, al., Company et

Arizona Public Service

Intervenors.

No. 71-2012. Appeals, States Court

United District of Circuit. Columbia

Argued Sept. 1972. 9, 1973.

Decided Nov. Rehearing

Intervenors Petition for Denied Dec. 1973.

Respondents Rehearing Petition for Denied Dec.

Petitioners Motion for Clarification Denied Dec. Suggestion

Intervenors for Reconsidera-

tion En Banc Denied Dec.