William Jordan v. United States Department of Justice

Justice, Kimmel, Atty., Dept, of Michael D.C., whom Earl J.

Washington, Sil- Lee,

bert, Atty. E. Asst. Atty., U. S. Rex Babcock,

Gen., Atty. Allen Asst. Barbara

Gen., Villa, John K. Leonard Schaitman Justice, Washington, D.C.,

Attys., Dept, of brief, appellee.

were on the WRIGHT, Judge, and BA-

Before Chief

ZELON, TAMM, ROBINSON, McGOWAN, WILKEY,

MacKINNON, Circuit ROBB and

Judges.

JUDGMENT

This cause to be heard came on appeal

court on the record from the

United District for the District States Court Columbia, were filed and briefs herein parties argued by and the cause sitting en

counsel before the court banc.

PER CURIAM: judgment District Court divided court. equally

affirmed

LEVENTHAL, Judge, took no Circuit

part in the this case. decision of

William et al. JORDAN

UNITED DEPARTMENT STATES OF

JUSTICE, Appellant.

No. 77-1240. Appeals,

United States Court

District Circuit. of Columbia

Argued April

Decided 31 Oct. Fox, III, Atty.,

Hamilton P. Asst. U. S. C., Washington, D. with whom Earl J. Sil- bert, Rauh, Atty., Principal U. Carl S. S. Atty., John A. Terry, Asst. U. S. Robert N. Guerrieri, Jr., Joseph Ford and Asst. U. S. C., Attys., Washington, D. were on the brief, appellant. for Kramer, C., Washington, Victor H. D. Hill, Washington, with whom E. D. Charles C., Sello, C., Washington, D. Judy were brief, appellee. on the Schaitman, Atty., Dept, Also Leonard C., Justice, Washington, ap- D. entered an pearance appellant. WRIGHT, BA- Judge, Chief

Before ZELON, McGOWAN, TAMM, LEVEN- MacKINNON, THAL, ROBINSON, ROBB WILKEY, Judges. Circuit WILKEY, for the Court filed Opinion Judge. Circuit BAZELON, Concurring opinion filed Judge. Circuit LEVENTHAL, joined Judge, by While we agree Circuit with the district court ROBINSON, III, these documents are W. Cir- releasable under SPOTTSWOOD Act, we agree do not concurring. Judge, cuit releasable (a)(2). under subsection Rather, by MacKINNON, Dissenting opinion filed we conclude that these documents are dis- Judge. Circuit closable under (a)(3). subsection We also find that the statutory exemptions from OPINION THE OUTLINE OP disclosure timely by claimed the Depart- Page 755 Introduction.............................. ment of Justice in this Exemptions 2 case— 755 ...................... BACKGROUND I. 5—are inapplicable. and Finally, we hold 755 .............. Framework A. Statutory Exemption 7, appellant which invoked 757 ...... Factual and Procedural History B. the first for time appeal, on this was not BASIS OF THE ASSERTED timely raised. Accordingly, the Order and DISCUSSION II. 759 ............... OF NON-DISCLOSURE Judgment of the district court is affirmed (a)(2) 759 A. Claim............. Appellant’s as modified. (b)(2) 763 B. Claim............. Appellant’s Language 763 ............ 1. Statutory I. BACKGROUND Legislative ............. 767 2. History (b)(5) 771 C. Claim............. Appellant’s Statutory A. Framework Privilege Process 1. The Deliberative Congress enacted the Freedom of Infor 772 Claim ........................ purpose mation Act the express for of in 774 The Work Product Claim 2. Attorney creasing government disclosure of records. 3. The Prosecutorial Discretion Privilege ................... designed pierce It “to veil of ad open secrecy agency ministrative and (b)(7) action Claim............. D. Appellant’s light scrutiny.”3 of public According ....................... CONCLUSION III. Report accompanying WILKEY, Judge: Circuit original passed 1966,4 version of FOIA general the statute “a philosophy reflects case This arises under Freedom of protects disclosure” and full “the “Act”).1 (the Appellant Act Information is right operations public’s to know of its Justice; United Department States Congress government.”5 amended the Jordan, a is William law appellee student at strengthen in 19746 to statute disclo Georgetown University Law Center. The House requirement. Report sure at issue are two documents relating records bill the amendments noted seeks “[t]his prosecutorial the exercise of discretion efficient, goal reach the prompt, more Attorney United for the States District full and disclosure of information.”7 Columbia and his assistants. The district Department held that the court Justice is 552, FOIA is at 5 codified U.S.C. § to index these documents required and to structure is now familiar. The public them inspection make available for part first (a)— statute —subsection copying (a)(2) under subsection of the mandates the disclosure of records by Act.2 It government agencies. is divided into 2. U.S. District 1. pendix “Order and Civil U.S.C. Action (App.), No. Judgment” Judge 76-0276, (1976). parties’ Waddy’s briefs at 76-77. reproduced January unpublished Ap- 5. p. 2418, reprinted Judiciary, formation rials, Cases, 1974). S.Rep. ^[1966] No. 93d Act 813, Articles U.S.Code Cong., Source Book: in Senate 2d Cong. Admin.News, Cong., Sess., Legislative & Comm, Freedom (Comm. 1st Sess. on the Mate- of In- Print. 3, Pub.L. No. Rose v. (2d 48 L.Ed.2d 11 89^487, Cir.1974), 80 Stat. 250 of Air aff’d, (1976). 425 U.S. Force, 6. Pub.L. No. Admin.News, (1974), reprinted H.R.Rep. No. 93-502, pp. 93-876, ^[1974] 88 Stat. 1561 93d U.S.Code Cong., (1974). 2d Sess. Cong. & Thus, (a)(2), paragraphs (a)(1), three these methods three setting forth parts, three — (a)(3)- disclosure chan- alternative information make must agencies —are nels, (a)(3) as a catch- (a)(1), paragraph serves Paragraph public. available of mate- mandating disclosure case, provision, all requires in this relevant otherwise categories within the rial that does not fall material types of enumerated certain paragraphs. two preceding Para- set forth in the Register. Federal published other that certain (a)(2) requires graph course, not command the Of FOIA does and made indexed material be types of government all records. Con disclosure of copying. inspection public available secrecy is neces gress realized that some by paragraph encompassed materials to function. Con sary government for the automatically available (2) part the second statute— sequently, necessary. It was inspection; no demand (b) categories nine subsection —enumerates district court category into this exempt from the Act’s of records that are case fell. in this materials found These limited ex requirement. provides per- in paragraph Specifically, however, the basic ceptions, “do not obscure part: tinent disclosure, secrecy, is the policy that pub- with The nine objective accordance dominant of the Act.”8 agency, in (2) Each rules, for are “exclusive”9 exemptions shall make available enumerated lished narrowly “must construed.”10 The copying— and and be public inspection present relevant case are exemptions as follows: policy and (B) those statements of (b) to matters apply This section does not which have been interpretations are— are not by agency and adopted Register; Federal published in the (2) solely person- to the internal related and practices agency; nel rules and of an (C) and administrative staff manuals * * * * * * that affect a instructions to staff (5) inter-agency intra-agency or memo- public. member randums or letters which would not comprehensively, para- Finally, and most lawby party be available to a other disclosure, demand, (a)(3) graph requires agency litigation than with the an reasonably of all other described records not agency; (a)(1) already paragraphs released under (a)(2). It provides pertinent part: ^{[*] [*] [*] [*] [*] [*]} (7) (3) Except respect investigatory compiled with to the records records for (1) paragraphs purposes, only made available under law enforcement but (2) subsection, agen- production of this each the extent (A) cy, such interfere with upon any request records records (B) deprive (A) reasonably proceedings, describe such enforcement (B) person right of a to a fair trial or records and is made in accordance time, (C) impartial adjudication, an consti- published stating rules (if any) per- tute an unwarranted invasion of place, procedures fees followed, (D) the identi- privacy, shall make the sonal disclose records and, ty of a source promptly any person. available to confidential Rose, Rose, Department of Air Force v. 425 U.S. at Rosen, of Air Force v. 425 U.S. 361, 361, 1592, 1599, Vaughn 352, 96 S.Ct. v. 96 S.Ct. 48 L.Ed.2d 11 820, (1973) U.S.App.D.C. 484 F.2d (1976). denied, cert. 415 U.S. 94 S.Ct. Rosen, (1974); Vaughn L.Ed.2d 873 173 U.S. Mink, 73, 79, 827, 35 EPA v. 410 U.S. 93 S.Ct. 187, 193, App.D.C. (1975); (1973). L.Ed.2d 119 David, 144, 157, Soucie (the Manual). rior Division” by a crimi- Court Most of compiled case of a record authority in the the information contained in this 178-page lawnal enforcement administrative, or investigation, concerning of a criminal Manual such course conducting witnesses, a lawful payment papering matters forms, investi- security intelligence procedures, sample organiza national office However, fur- tion, information gation, confidential and the like.15 are there ten the confidential paragraphs in the spe nished Manual that contain source, (E) investigative disclose guidelines cific and criteria which Assistant (F) en- techniques procedures, Attorneys expected United States physical safety of danger the life or handling Spe consider in certain offenses. personnel; law enforcement cifically, guidelines contained in these cover paragraphs following ten sub History Factual and Procedural B. (1) jects: non-prosecu situations which tion is warranted for certain appellee Jordan sex-related 13 November On request Deputy (paragraph 316); (2) with the offenses No. an FOIA situations filed General, seeking access to Attorney prosecution which selective is warranted manuals, rules, guidelines narcotic and charging larceny certain offenses of the United States depending upon quantitative considerations, the Office used District of Columbia Attorney for the i. possessed e. the amount of narcotics prose should be persons “which deciding of property value stolen (paragraphs No. of criminal suspected for violations 333); (3) cuted guidelines 332a and for the selec Columbia, the in District of and/or laws appropriate charges among of prosecutorial discretion in which manner charges available alternative depending exercised”, (2) persons and “which will be upon considerations, certain factual g., e. will criminal laws suspected of violations of injuries the nature and extent of and the programs for rehabilitation eligible type weapon of involved (paragraphs No. from criminal divert such individuals which 307a, 307b, 308b, 327f); (4) recommended of Justice Department prosecution.”11 considering in eligibility criteria for first request February on 3 Jordan’s denied (paragraph 360a); offender treatment No. requested documents claiming (5) warranting and situations certain inter exempt from disclosure subsection were action, prosecutorial nal g., e. the initiation Act.12 Jordan filed suit (b)(5) of the D.C.Code, five-day of a hold under 23- 1976,seek February court on 19 the district 1322(e) charges brought reduction Department’s action.13 review of the against police defendants who are infor 350).16 (paragraphs mants 221 and No. discovery it was deter In the course documents there are at least 30 mined that pertinent is second document a 6- Attorney of the United States Office page memorandum entitled “Pre-Trial Di Columbia that fall within the District of for (the version “Guidelines”). Guidelines” description requested by of materials guidelines These set forth the criteria for However, two of these docu Jordan.14 eligibility separate pre-trial in three diver pertinent are in this case. ments programs. sion programs One the three guidelines “Pa pertinent document discussed is the First The first Of Supe (FOT) for the fender Screening program, Manual Treatment and pering and Interrog- 14. from Victor Defendant’s Answers Letter of 13 November 1975 to Plaintiffs’ atories, (counsel appellee) Deputy App. to Attor- Kramer for 26-35. General, ney App. 8-9. Silbert, J. Affidavit of Earl United States Gray, February of 3 1976 from Wm. 12. Letter Attorney Columbia, App. for the District of Attorneys, for of Executive Office U.S. Director 40-46. Kramer, App. Victor 12-13. at 43. Id Declaratory Injunctive Complaint and for Relief, App. 2-7. exempts “intra-agency in this from disclosure eligibility program for criteria six each of Guideline’s or letters which would not discussed on memorandums pages.17 party be available law to other than with the litigation agency.” par- 1976 Jordan moved for On 24 March stressed what viewed as also (1) judgment respect summary tial pernicious consequences would re- “Papering Screening and Manu- the entire sult from disclosure: al”, the FOT Guidelines contained Diversion Guidelines”. Jor- the “Pre-Trial Public these materials would disclosure of Department of Jus- dan contended alert situ members those (a)(2) by subsection required tice was ations, and offenses persons, for Act to both of these documents index withheld, prosecution selectively ap public inspection for make them “available by pre-trial plied, disposed diversion. policy as “statements of copying” then ex successfully Individuals could (a)(2)(B) under adopted by agency” ploit by committing crimes policies these in- staff manuals and as “administrative categories, thereby within these select es (a)(2)(C). to staff” under structions caping prosecution. example, publi For Attorney for April On 30 U.S. non-prosecution (or policy cation of a wrote Jordan’s of Columbia District prosecution degree at a lesser of serious counsel, stating: ness) possession quantities of certain 178- I entire have determined specific drugs narcotic would serve Screening page & Manual Papering only to encourage dealers and users of you your inspection be disclosed to carry quantities narcotics to lesser subject only to the excision copying, drug specified guide than those our in which I believe paragraphs ten lines. A similar result would if obtain exists, statutory in addition valid there our guidelines regarding internal mone governmental vital exemptions, present value tary (property tolerances theft mín regard to disclose. With interest not imums larceny used in cases determine (FOT) guide Treatment First Offender prosecution warranted) whether were lines, Programs are Pre-Trial Diversion since an offender released could avoid containing six treated in a document prosecution merely by stealing prop full pages, each of which is discussed FOT. on erty valued at less than our de minimus are claimed as to exemptions The same Obviously, standards. revelation regarding this as are claimed document this kind of information would serve no paragraphs Paper ten excised legitimate public purpose and ulti Screening Manual. These claims & mately many result in the rescission of will be dealt with in De for these guidelines and termination of our Cross-Motion Partial Sum fendant’s program.19 FOT Judgment.18 mary argued The case before District Department of Justice Subsequently, Judge Waddy January Judge partial summary filed cross-motion for bench, Waddy and, ruled from on the respect to the 10 withheld judgment with following day, the district court issued a Manual the FOT paragraphs in the and Judgment written granted Order and claiming that this material was guidelines, summary appellee’s judgment motion for (b)(2), exempts which by subsection covered the Manual and declared that and the solely matters “related from disclosure under Guidelines were releasable subsection practices and personnel rules internal (a)(2) Department Act. The (b)(5), which of Jus- agency”, subsection Silbert, App. 17. Id. at 42. Earl Affidavit of Attorney April from U.S. 18. Letter of Kramer, App. Victor Silbert to appeals Judgm

tice from this Order and term “administrative”, explaining this ent.20 modification in its Report:

The limitation of the staff manuals and instructions affecting which II. THE DISCUSSION OF ASSERTED must be made available to the public to OF BASES NON-DISCLOSURE those pertain to administrative Department Justice contends on matters rather than to law enforcement appeal portions that the withheld protects matters the traditional confiden exempt Manual and the FOT Guidelines are tial nature of instructions government mandatory public disclosure under personnel prosecuting violations of law in specific provisions It relies on four FOIA. court, while permitting public examina (a)(2), paragraph exemp- in the Act: tion of the basis for administrative act (b)(2), (b)(5), (b)(7). tions We shall ion.22 examine these claims seriatim. The House report explained this amend- ment in similar terms: (a)(2) Appellant’s A. Claim agency may not be required to [A]n make available portions those of its staff held that the Man manu The district court als and instructions which set forth sought by appellee ual Jor crite and Guidelines guidelines ria or for the staff (a)(2) paragraph auditing were under dan releasable inspection procedures, or in noted, already the Act. As we have selec tion or handling cases, such opera as requires that certain enumerated paragraph tactics, tional tolerances, allowable materials, or cri including “administrative staff defense, teria for prosecution, manuals”, and made settle be indexed available ment of cases.23 public inspection copying even with out a demand. The of Justice evident, then, It is inserting the that this argues ruling district court word “administrative” in paragraph (a)(2), was erroneous. Its contention is that the Congress intended to make a distinction materials at issue in this case are not “ad manuals, between “administrative” on the staff manuals” ministrative but rather are hand, one and “law manuals, enforcement” and, such, “law-enforcement manuals” on the other. It is also clear Congress (a)(2). paragraph are not releasable under intended that the former material should be subject to the indexing public inspec- Department’s position ample finds tion and copying requirements of paragraph support legislative history. orig (a)(2) and that the latter material should inal version of FOIA introduced into the not be included within the coverage of this did not contain the word “adminis paragraph. trative” before the words “staff manuals” paragraph (a)(2); (C) clause of that para The line between these two categories— graph only referred to “staff manuals.”21 “administrative” matters and “law enforce Judiciary The Senate Committee inserted ment” matters —is clear, not exactly and it 20. two of the ten withheld no. terials were disclosed to June 1977. issue brought against police informants. pliance Papering and oral of an abundance of caution to insure During pendency and 221, dealing argument, paragraph eight paragraphs with the Screening and Thus, presently Screening no. FOIA” disclosed to with Manual” Department five-day-hold requests, appellee by dealing paragraphs Manual — appeal together 178-page “Paper- there remain at of Justice “out and letter of 22 paragraph These ma- [its] from the with the appellee prior charges com- p. 7-8 (1965), lines.” entire pp. 2424-2425. News, [1966] U.S.Code H.R.Rep. S.Rep. S. Cong.Rec. ^[1966] six-page (emphasis added). No. 89th ^[1966] No. U.S.Code Cong. Admin.News, p. 2418, “Pre-trial Diversion Guide- Cong., U.S.Code 89th (daily & Cong. Admin.News, Cong., 1st Sess. § ed. Cong., Cong. & 1st Feb. 2d Sess. at Sess. at 2 & 3(b), Admin. 1965). (c), the Act. It means that are not in some cases.24 to draw difficult may be case, subject indexing pub- and enough. particular it is clear However, this specifi reports copying requirements House of inspection lic Both the Senate to Govern that instructions cally paragraph; indicate that these same documents in court cases prosecuting (a)(1) or personnel ment nevertheless be covered either and, hence, matters Indeed, “law enforcement” (a) (a)(3) provi- are catch-all is a (a)(2). Man scope paragraph outside the sion, virtually every agency record here at issue —both ifestly, the documents (a)(1) (a)(2) which does not fall within or within and the Guidelines —fall the Manual (a)(3) it falls within disclosable under unless material. of non-covered description exemptions one of the nine in subsection withheld Therefore, we conclude (b). the FOT Guide the Manual and portions already In the instant case we have under subject to disclosure lines are not concluded that the Manual and Guidelines with the De (a)(2).25 agree We paragraph sought by appellee are not covered Jordan court the district of Justice partment (a)(2); they appear nor do to fall within respect. in this erred categories of materials enumerated in However, that the material the mere fact However, (a)(1). they clearly fall within within by appellee does not fall requested (a)(3). scope There is no doubt that (a)(2) does not mean scope paragraph records”; “agency these documents under the exempt it is from disclosure appellee there is no doubt that Jordan has noted, already we have subsection Act. As requested these documents “in accordance three different methods of (a) provides for with the rules” the Department of Jus public: available to the making information tice; appellee there is no doubt that Jor publish- certain matter to be (a)(1) requires “reasonably request dan’s describes” the (a)(2) Register; requires in the Federal ed sought; records and it is clear that these indexed and made certain matter to be already documents have not been made copying public inspection available for (a)(1) (a)(2). available under or Under demand; (a)(3) requires even without circumstances, then, Department these reasonably on demand of all the release of Justice must make the Manual and already that have not described records “promptly Guidelines available” to Jordan (a)(1) (a)(2). available under been made paragraph (a)(3), under unless these docu Thus, (a)(2) is but one of three paragraph exempted ments are from disclosure channels in the Act. alternative disclosure specific least the nine exemptions one of records, such as the Manual particular If (b). delineated subsection ease, in this do not fall with- and Guidelines (a)(2), strongly not mean that of Justice chal- scope does conclusion, lenges this contending are not disclosable under that staff such documents Service, particular type ed a of document Hawkes v. Internal Revenue from the cov 1972). (6th erage (C), wholly F.2d 787 of clause it would Cir. incon (A) (B) sistent to read either clauses as limiting embracing “administrative” type 25. While the word of document. This does (a)(2), (C) paragraph true, however, it obvi- types used in clause not hold of records ously manuals “law enforcement” separate excludes paragraphs; excluded under numbered (a)(2) coverage paragraph from the paragraph each since mandates a different words, read the In other we cannot disclosure, whole. mode of the exclusion of certain (B) policy” phrase as in clause “statements of scope paragraph matter from the of one means covering manuals which have law enforcement only that such matter is not to be released in scope specifically of been excluded from mode; particular it does not foreclose the (a)(2) by (C). Paragraph paragraph clause possibility separate para of disclosure under a (a)(2) single releasing forth a for sets method graph. purpose having The different modes public, namely, indexing agency records to type of disclosure is to deal with different docu inspection public and automatic release for ways. ments in different See discussion at (A), (C) (B), copying. Clauses list three pages ----- of U.S.App.D.C., 192 subject types documents to this mode of pages supra. 755-756 of 591 F.2d Congress specifically If has exclud- disclosure.

761 (a)(2) not because report manuals disclosable under Committee states that are, manuals” as “law enforcement they are the purpose (c) of subsection is to well, such, (a)(3) disclosure as exempt from make clear beyond doubt that all materi any of whether nine ex regardless als of the Government are to be made (b) applies. The De emptions subsection available to the . public . . unless the congressional reasons that partment specifically kept allowed be secret (a)(2) protecting evinced in law policy one exemptions in subsection disclosure would enforcement matters from [(b)].28 if the materials are re be same frustrated (a)(3). therefore under It asserts Moreover, leasable (a)(4)(B), paragraph part of the by excluding “that law enforcement manu Act, 1974 provides amendments to (a)(2), als from ambit of section Con reviewing may courts examine withheld them from gress intended to exclude records in camera We believe ambit of entire Act.”26 to determine whether any such records or in view position is untenable of the that this part thereof be shall withheld under the Act. structure of fundamental exemptions set forth in subsection (a) three in subsection paragraphs 29 (b) . . . provisions. exempting Act are not Even more compelling, the last sentence of are to exemptions in the Act be found (b) clearly subsection states that only mat- (b). specific exemp- The nine subsection ters specifically exempted by that subsec- forth in are exclu- tions set that subsection structured, then, may tion As the Act be an agency: sive. withheld justified withholding is not rec- Any reasonably segregable portion aof unless from those rec- ords record shall be provided any person specific fall within the terms of at ords requesting such record after deletion of exemptions one of the nine least subsec- the portions are exempt under (b). This is clear from both the stat- tion subsection.30 language legislative plain ute’s and its his- We agree with 552(c), the Senate that § Act, (c) tory. Subsection for exam- together 552(a)(4)(B) 552(b), § § ple, provides FOIA does beyond make the “clear matter doubt.” withholding not authorize of infor does Finally, the case law confines the Act’s availability mation or limit the of records exemptions to those public, specifically enumerated in subsec except stated 27 (b).31 Supreme As the Court noted 27. U.S.C. § 29. 5 U.S.C. 30. 5 U.S.C. 31. Kent at 3. that ry, p. 2418. arms, creates statutory language, coverage disclosure under Caplan 5 Supplemental S.Rep. constrained law subsection ^[1966] v. Bureau of a restriction judicial under enforcement manual excluded from No. F.Supp. NLRB, § 552(c). 552(b). 552(a)(4)(B). U.S.Code interpretations (a)(2)(C) (a)(2)(C)’s legislative history (a)(3)) (“In Memorandum reject Alcohol, on disclosure (S.D.N.Y.1978) Cong. Cong., . was still . light legislative Tobacco & agency’s theory & (5th 1st Admin.News, of the clear beyond Sess. at 10 Cir. subject Appellant (holding Act, 1976); histo- Fire- we 410 U.S. nine These C. whether ment of Air Force Revenue must be concrete, letter nine D. (b).”); even if Myers ates U.S.App.D.C. C. 1973), Sears, 96 S.Ct. (1973) (“Subsection (b) a exemptions 243, exemptions rulings subject exemptions Co. v. Tax liberal disclosure particular modified and Service, Roebuck & 73, 79, disclosed.”); and are workable 505 within 44 L.Ed.2d 29 Analysts FTC, F.2d 93 S.Ct. 362 scope 48 L.Ed.2d 11 are material enumerated in subsection v. plainly standards and Advocates v. Internal (“The Co., 350 to disclosure under Rose, F.Supp. explicitly remanded, F.2d 670 Getman v. compelled (1975); 421 U.S. 827, 832, requirement, (a)(2)). intended to set legislative plan of the Act creates 1298, (1971); made exclusive U.S. (1976); EPA v. (holding 164 determining 132, 136, disclosures. withheld NLRB, 35 L.Ed.2d 1306 22, 25, U.S.App. Depart Bristol- limited NLRB Mink, (a)(3) (D.D. 360- cre IRS up legislative by placing error egregious an Sears, Company32 & Roebuck R. B. N. L. exemption in the to be an what it intended example: Act, we would of the wrong subsection structured, every virtually the Act As repeated the clear and ignore also have to generated document in in the statute itself and other statements in one form public available to history that the Act legislative parts of another, within one of it falls unless only withholding documents permits . . exemptions. nine [T]he Act’s that such documents fall within extent apply’ ‘does not obligation (b). in subsection We specific exemption nine in the described documents those ambiguous legislative give are reluctant to in categories listed exempt enumerated recently As we history weight. this much 552(b). “Ambiguous concerning the FOIA: stated in paragraph limitations clear that It is thus legislative history can inferences from the man- enforcement respect to law (a)(2) with the lan supplant not the clear mandate of from disclo- uals, “exempt” material not do guage of the statute.”33 (a)(3), only since the paragraph under sure hand, may it be that Con- On the other Act, Congress has in the as exemptions complete pro- gress give did not intend to (b). declared, are in subsection expressly the “law enforcement” materials tection to (a)(1) (a)(2) either nonapplicability of (a)(2). (a)(2) Paragraphs it excluded from possibility of disclo- foreclose does not (a)(3) provide for different methods (a)(3) has no (a)(3), for otherwise sure under (a)(2) requires disclosure: index- purpose. and their automatic release ing of materials contends Still, the Justice (a)(3) only public; requires release excluding law purpose in Congress’ that request reasonably of a de- upon filing (a)(2) be from would matters enforcement sought. placing material In scribing the these including completely defeated accessibility of law the limitation on (a)(3), that in order to matters same (a)(2) paragraph enforcement materials (a)(2), we the limitations give effect (b), may than in subsection it be that rather exemp- (a)(2)(C) creating an as must read some, Congress intended to extend but not (b). in subsection to the nine in addition materials; complete, protection to these is not argument that this recognize We is, Congress protect intended to law frivolous; however, out that it point we pub- from automatic enforcement manuals Congress’ necessarily follow that does not (a)(2) indexing disclosure under but lic (a)(2) will scope limiting purpose (a)(3). disclosure on demand under from (a)(3), effect to by giving full frustrated be may thought peculiar This a somewhat Congress’ give some effect for we must may not be in the regime and one modes defining three different purpose in interest, wholly it is not a irra- public’s but types of docu- disclosure for different one, reading legisla- tional and this ments. (a)(2) is at least history paragraph tive be, hand, appellant the one On plain wording with the consistent in exclud- Congress’ purpose suggests, other, ambiguous, parts less statute and (a)(2) from enforcement matters history. law We feel constrained legislative all forms these matters from protect accept interpretation was to this absence legislative to read the guidance In order for us of clearer of disclosure. however, Congress we branch: If has made mistake history way, in this legislative law, Congress repair must it. drafting made Congress suppose have to Committee, Open exemptions v. Federal Market specific are to be 33. Merrill 210-11, City narrowly construed.”). of Con But see Ambrose, (N.D.Cal. F.Supp. granted, 436 U.S. 785-86 cert. cord 1971). (1978). 56 L.Ed.2d 757 132, 136-37, 1509-10 421 U.S. 95 S.Ct. sum, then, we that the Manual Manual In hold and Guidelines sought by appellee sought by appellee Jordan in and Guidelines should be properly more described as “ex- para- are not releasable under this case “internal”, ternal” rather than although However, (a)(2) of the Act. these graph this is not the decisive division. paragraph are releasable under documents “Personnel” is problem the real for the (3), within (a) unless fall at least one of agency Government seeking here to avoid forth in exemptions the nine set subsection disclosure. It is almost impossible to look has, fact, (b) Department claimed short, at this simple face, exemption on its exemptions apply that three of these to the solely “related personnel internal (b)(2), (5) (7). requested and documents — rules practices agency,” an say proceed We shall now to treat these claims that this description was intended to cover in turn. the Manual and Guidelines here. The word “personnel” normally connote mat (b)(2) B. Appellant’s Claim ters relating to pay, pensions, vacations, Department of Justice contends work, hours of hours, lunch parking, etc.— portions the Manual withheld precisely the kind of trivia that was indeed exempted and the are FOT Guidelines described the Senate’s comment on the mandatory (b)(2). subsection coverage particular of this exemption.34 statutory We think it is clear from the why Just go statute should to the trou language legislative history and the of sub ble special to include a exempt subsection (b)(2) position section that this is without ing this trivia is not certain. But this is merit. plain what language of the statute to, points confirmed the Sen Statutory Language comment, ate’s as will be seen below. The terms, According (b)(2) to its subsection Manual or Guidelines of the type at issue exempts from disclosure matters “related simply “personnel” rules prac solely personnel to the internal rules and tices. practices agency.” of an There are three Finally, the word “solely” emphasizes the key description words in this short of ex- scope Exemption limited whatever the “internal”, empted “solely”, material: and other deciphered words are to mean. “personnel”. It can be concluded from the face of “Internal”, modifying as or limiting “per- the statute that the Guidelines issue here rules practices sonal of an agency”, are not specific language within the Ex- would seem to refer to those rules and emption 2. practices that concern relations among the

employees agency, of an as distinct from In Ginsburg, Feldman & Bress v. to, practices might FEA,35 rules and relate the now panel opinion vacated impact have a upon, judges more direct members two up came with a reading novel public. practices The rules and by Exemption 2. phrases It claimed that the which an orders its own affairs “internal personnel “practices rules” and among personnel its own agency” would seem to could be read disjunctively, with public little invite interest in disclosure. phrase referring former to relations be Conversely, practices rules and that have a tween the agency employees and its impact definite on the would seem phrase to with the latter referring opera subject a more fit for disclosure to the tional employees. conduct of the On this might public. properly appeal, former be de- first time since it has been “internal”, the latter dealing scribed as “exter- with the Freedom of Information basis, Act, practices. rules and nal” On of Justice has now p. 2418. S.Rep. ^[1966] No. U.S.Code Cong. Cong., & Admin.News, 2d Sess. 8 U.S.App.D.C. -, F.2d 717 764 36 dyad prac- both nouns in the “rules and 2 and fies Exemption reading this of

adopted “prac- Guidelines sever Congress Manual and tices”. If intended to that the argues relating rules”, matters are by appellee personnel from “internal sought tices” therefore agency” of an “practices parallel have preserved construction provision.37 this exempt under the article “the” before the inserting “practices”. word cannot be sustained. interpretation This English of of basic rules violative It solely rules rely We need not on the of history contrary legislative to the grammar, Congress grammar to determine that had with incompatible exemption, the of exempting catego- intention a general no of Indeed, of the Act. general purpose the relating “practices ry of information of specif considered the which has every court agency”. legislative It is clear the an from concluded, 2 Exemption has language of ic clause, history particular of this with direct reasons, that good and sufficient construction, grammatical reference to its modifies both personnel” “internal phrase Congress exemption intended the to be “practices”.38 “rules” clause, a composite covering only read as clear “internal” Grammatically, it is personnel internal matters. is an ad- “practices”. “Internal” modifies Exemption The phrasing of 2 is traceable by the requires completion jective which Congressional with the ex dissatisfaction What- an agency”. clause “of prepositional emption from disclosure Sec under former be in- by “internal” must ever is modified tion 3 of the Administrative Procedures Act or- something. “Internal” ternal “any relating solely matter to the inter “of an relates to the clause phaned unless it management Agen agency.”39 nal of an both grammar It agency”. is basic language cies had relied on broad by the “internal” and nouns bracketed word refusing “ranging] to disclose matters phrase agency” “of an are modified important insignificant.”40 Moreover, it is conceiva- “internal”. while personnel “rules”, language “internal rules and only to “personnel” applies ble specifical- first used in preferred practices” that it modi- was a bill construction is 38. Consumers Union movement ment Congress the 89th drafts islation. revision were introduced in tice personnel infra). Strange indeed it is that the did tion from 547). at 5. ing” Congress introduced. No action was taken on these bills (H.R. period since Ginzburg U.S.App.D.C., pages Veterans From at least as Supplemental played passed amending now statute so as to 7174 Various Justice was authorize Congress that the proposed In Administration, never occurred at the advocated began and S. hearings the 85th enactment special hearings on freedom of public (See Memorandum for in earnest 2148) freedom of information continuously early role and comment on various Congress (Pub.L. 85-619, of United provide pages withholding 764-766 of of the FOIA. information but Judge to the well-informed 86th and Federal Department S. 1663. It was in the “construction” during in 1958 statute 1958, information bills F.Supp. during that the statute the first MacKinnon in States, Inc. involved with “housekeep- of informa- interpreta- laws 87th, Appellant the 88th 72 Stat. Depart- 13-year of Jus- major was leg- but 39. 5 U.S.C. grounds (W.D.Wash.1968), tion to Richardson, F.2d 878 rules.” See Tietze (Vaughn II), (5th Cir. an Services (S.D.N.Y.1969), F.Supp. 504 610 Service, p. 2422. Cal.1971). denied 1136 of Concord v. Cases which have H.R.Rep. agency” apart (1975); 1363 (S.D.Tex.1972); Exemption sub ^[1966] 467 F.2d 787 Administration, sub nom. Cuneo v. (9th 1973); (2d nom. 367 No. Cir. 173 Stokes Ambrose, U.S.Code (D.D.C.1972), Cir. appeal F.Supp. Hawkes v. Internal Revenue 1969). U.S.App.D.C. Vaughn 2 aff'd on other 484 F.2d 1086 v. 1971); from “internal have not set given v. (6th L.Ed.2d 873 Richardson, Cuneo v. dismissed as Brennan, Cong. 1316 289 Cir. a broad Benson v. General (emphasis added). Cong., F.Supp. F.Supp. Vaughn Rosen, rev’d on other Schlesinger, (D.D.C.1973). & 1972); 187, Admin.News, 476 F.2d 699 grounds, “practices (1973), (1974); City 342 Laird, 2d Sess. 5 interpreta moot, personnel 523 F.2d 590, v. Rosen Stern v. F.Supp. (N.D. cert. U.S. 415 436 338 594 man narrow the “internal Government Information ly designed to Subcommittee of Operations 3 of the House Government exemption former Section Commit agement” tee, Kass, Benny in the 88th L. counsel APA. introduced to the subcom S. mittee, Schlei, and Norbert A. for “inter Assistant Congress, proposed General, Attorney Counsel, Legal Office of management” only in the subsection nal the scope phrase discussed “internal pub matters to be requiring certain bill personnel rules practices”:43 Register. In the sub lished the Federal rules, and requiring agency orders section Schlei, Mr. Kass. Mr. your what in records to be made available interpretation exemption of No. 2? What proposed only was spection, exemption an information would fall under those rec- “solely related to the inter for information ords relating solely per- to the internal practices of an personnel nal rules and sonnel rules practices agency? of an highlighted agency.” This distinction How your agency interpret does that? Report on refer in the S. Well, Mr. Schlei. we were inclined to tightly the latter as “more drawn” ence to critical exception be of that because it did The Freedom of Information language.41 actually personnel not seem to us that the in Congress, introduced in the 89th bills rules practices of an agency, many of which became the law in cluding them, S. ought exempt. to be They ought 1966, dropped management” the “internal to public. you be How handle various over the exemption altogether and carried personnel problems somebody and where language of tightly drawn” S. goes complain “more if he is treated wrongly Thus, exemption. as the single as a Su superior, his and so on. All those of things concluded I preme suppose public. Court should be legislative Rose42 “the They published Air Force v. should be somewhere. congressional history plainly They up evidences should be on a bulletin board. wording Exemption conclusion that the personnel And there are some rules and practices’, rules and personnel ‘internal practices that ought exempt, to be and I reach than the was to have a narrower think that —let’s see— exemption Act’s Administrative Procedure Mr. Kass. It is 2.No. management’ ‘internal ”. The Justice Mr. exception, Schlei. And so that it Exemption Department’s interpretation us, protected seemed from disclosure agency” apart “practices 2 which sets of an protection, things did not need as category exempt in independent as an as perhaps going enough well as far contrary Congress’ formation would be aspects to some of information inter clear intention that this gets employees. Government about preted specifically narrowly. is, Mr. Kass. Where an individual let’s assume, fired from the cause convincingly, Even more is clear —for hope the facts and circum- hearings on we both House and Senate —would discharge surrounding stances fall legislation Freedom of Information personnel practices agen- within the of an everyone Congress 89th concerned in you it? cy as read legislative both the and executive branches person so, understood that the words “internal Mr. I should not think al- Schlei. to all of applied though you talking nel” For here are about rec- ” example, day hearings on the first of House “practices ords that are related to the Moss, record, Congressman agency, conceivably H.R. John E. a al- though summary it contained Foreign Operations Chairman S.Rep. Cong., No. 88th 2d Sess. 12 Federal Public Records Law Part I: Hear- al., ings (1964). Foreign on H.R. et before the Operations and Information Sub- Government Comm, comm. of the House Operations, on Government 42. 425 U.S. at 96 S.Ct. Sess., (30 Cong., 1st 29-30 April 1965). March-5 Well, it one of those Mr. Schlei. facts, might be related say, some Chairman, just shows things, Mr. practices,” of personnel “practices, cover the whole Govern- hard it is to how file, a series part of of a agency, part are a with a few words. There ment documents. problems. number of my top just talking off I am Oh, recognize we the diffi- Mr. Moss. say I would but problem, about that head complexity, per- but we are culty and where a situation you get could work at it. fectly willing to came or document factual statement exchange that Con exception. It is clear from this within that Moss, H.R. had author of gressman you talking, are all Mr. Kass. We personnel” “internal intended the words heads. We top of our say, off He “practices”. “rules” and apply to both history to de- legislative trying to create manuals investigative wanted apparently what we intend. termine exemption, but he was told covered was intended What this Mr. Moss. “personnel” precluded the word flatly that the manuals such as instances cover was this, acknowledged interpretation. He such exam- to an that are handed procedure of excising “per but stated his concern examiner, savings a or bank iner —a “open the barn door” sonnel” would to examiner, guidelines given or the loan exemption for all “internal leaving a broad agent. an FBI also practices”. rules was Senate “per- Then the word Ah! Mr. Schlei. (at hearings on told several witnesses its Because should be stricken. sonnel” FOIA) proposed legislation did certainly think connoted “personnel” I protect investigative not manuals and relations, employee employees use the protect if the wanted to this materi Senate practices of rules and management expand Exemp al it would either have to was material you meant What agency. 2,44 provi Exemption 745 or some other rules and solely to the internal related However, Act.46 at no time did sion of the guidance agency for the any practices any Committee or individual that. employees something like — investiga to cover express Senator desire protec- that there should be agree I do and, accordingly, change no tive manuals given to FBI the instructions tion for the bill was made. examiners; who, people agents and bank Finally, reading Exemption it is clear in expectable going operate if Act as a whole that in the context of the jobs. Their in- cannot do their ways, “prac- intended to limit the word Congress have to be withheld. structions matters. The personnel” to “internal tices” “personnel” that word does But I think to assure purpose of the Act is recognized job enough, well Mr. Chair- not do the governmen- possible the broadest access I am sure it can be done. man. re- Accordingly, the disclosure tal records. hope way We will to seek a Mr. Moss. broadly, the construed quirements are to be inter- doing job exempting without De- If the Justice exemptions narrowly. practices. nal rules and Exemption 2 were reading of partment’s that could cover suppose Mr. I Schlei. apply to “mat- Act would not accepted, the quite ground, a lot of Mr. Chairman. solely to the . . related ters that are agency.” This practices Because I am afraid that we of an Mr. Moss. exemption, so broad every- door to an unlimited open there barn would be would the rest of effectively swallow that it would thing. Benjamin). (remarks Hearings Mr. at 112 Procedure Act: Id. 44. Administrative al., before the Subcomm. on Admin- S. 1160 et Davis). (statement and Procedure of the Senate istrative Practices of Professor at 149 Id. Comm, Judiciary, Cong., 1st Sess. on the (statement (12, May 1965) of Mr. Rains). practice? What is not an hours, the Act. of lunch regulations or statements are there do agency documents leave, What to sick policy as and the like.47 why And agency practices? relate not opposite Diametrically House Re- enumer- Congress have bothered would port: eight exemptions “practices” the other ate — 2. Matters related solely to the inter cover it all. would personnel any nal rules practices short, survey intrinsic and every In rules, agency: Operating guidelines, and interpretation aid relevant to extrinsic procedure for in manuals of Government reading supports our vestigators examiners ex would be specific language. words provision’s disclosure, empt from this exemption but personnel” modify both the terms “internal not cover all “matters of internal and, “practices”, anything “rules” and if management” employee such as relations clear, it issue is that the documents at here working conditions in routine admin relate “solely” to “internal” do procedures istrative which are withheld ” Indeed, they may “personnel matters. present law.48 under to relate substan- primarily said to external Thus, Report interprets Exemp the Senate matters. tive exempting only “housekeep tion as trivial in which Legislative ing” presumed matters it can be History lacks substantial interest. respect With legislative history of of the House language Report, how particular exemption, the Justice De ever, potential the exempting “carries a is in partment an even position weaker than wide swath of information under the cate respect argument to its on the face of rules, gory ‘operating guidelines statute, Court, the because the Supreme in ”49 procedures.’ manuals of The Justice Department of the Air a Rose, Force et l. v. on Report relies the House et a l. and this court in Vaughn v. Rosen argues that the Manual and Guidelines are II) (Vaughn have construed and discussed exempted disclosure as “operating from length the legislative at history this ex rules, guidelines, proce manuals of emption. dure.” perils of reliance legislative on histo- matter, As a liminal it must be remem ry are nowhere better illustrated than with bered that reports committee are not the 2, regard Exemption rarely can there law; they are aids in interpreting stat two be found such contradictory explana- utory language and are useful only to the of a tions statute’s meaning than in the they fairly extent reflect congressional int Senate and House Reports. The Senate ent.50 Sometimes reports committee are on Report the Freedom of Act Information guides as, not reliable to legislative intent, stated: example, where contain statements Exemption 2 relates only to the inter plain contradict the meaning personnel nal practices rules and of an statutory language51 or that conflict with agency. Examples of these be rules personnel’s toas use of parking facilities purpose the expressed of the statute.52 47. D.C. p. p. 2427. (1965) Vaughn S.Rep. H.R.Rep. , , ^{[1966] [1966]} No. 523 F.2d No. Rosen U.S.Code U.S.Code 813, 1497, (Vaughn II), 89th at 1142. Cong. Admin.News, Cong. Cong., Cong., & & Admin.News, 2d 2d U.S.App. Sess. 10 Sess. 8 51. trary language have trolling passed fect, 96 (“One Id. at U.S.App.D.C. — an amendment difficulty contrary.”). sentence a bill where 316, containing unambiguous both houses of accepting in a Senate F.2d statute.”); 225 F.2d to the clear—and con- at the Report Abell v. report Congress (“[W]e is not con- as, language Spencer, (1955) have ef- Evans, g., U.S.App.D.C. In re E. Motors, States v. General United 52. 1239, cert. denied sub nom. United States 27, 45, (1975). Evans, 930, 92 408 U.S. L.Ed.2d of the Act than did the Senate purpose eral discrep amazing the We confronted first Re and House Report:57 ancy Senate between inAct Freedom of Information ports Reinforcing this “the interpretation is II).53 In that (Vaughn Vaughn v. Rosen legislative clear intent to as- [of FOIA] as a Report House rejected we case governmental access all sure construing Exemption 2 guide reliable signif- records whose would not rely upon the Senate instead and chose icantly specific governmental harm inter- legis being a indication of Report as truer result, we have repeatedly ests.” As has con court which Every intent. lative policy stated that of the Act re- “[t]he reports the difference between sidered requirement quires that the disclosure the same.54 has done broadly, exemptions construed nar- rea expressed II Vaughn we several In Thus, rowly.” with a faced conflict Report. preferring the Senate sons for legislative history, recognized lan First, Report we noted principal FOIA purpose requires us actual more with the consistent guage interpretation to choose that favor- most statute, House whereas the wording of ing disclosure. depart areas to Report appeared several statutory and indeed contradict important the Act. This is an language of Finally, Vaughn we addressed II what reliability relative determining the factor in one commentator has called “abuse of Second, reports.55 we ob of committee legislative history” which was involved in Report potentially House served adoption Report.58 of the House This refers wide of information” exempted “a swath expansive gloss the fact that the placed guidance as to which matters gave no but 2 and other sections of the are and which covered Report product Act the House was the not, Report provided the Senate whereas last chicanery minute interested mem agencies and courts could standard bers of the House after Senate had certainty, consistency and clari apply with just as the full passed the bill Commit re to which a committee ty. The extent to report in the House was about out tee statutory actually language clarifies port episode bill. The of this have the details determining also relevant factor placed by Benny on the record been reports are to to reliability, for be used Kass, to Foreign L. who was counsel the ambiguities, new resolve not to create and Government Operations Operations Third, sweeping we that ones.56 noted the 1965, 1962 was Committee from and who interpretation of Exemption 2 favored later assistant counsel to the Subcommittee Report the incompatible House was on Administrative Practice and Procedure Congress’ expressed intent cut back on Judiciary the Testi previous man Senate Committee. the for “internal Fourth, agement.” we observed that the fying hearings pro 1973 at Senate on Report the less language of House seemed posed amendments to the Freedom of Infor Act, explained “why Mr. consonant with overall mation Kass gen- scheme and supra. g., Co., 53. Note 49 Manager, E. FTC v. Retail Credit 169 U.S.App.D.C. 271, 988, 515 F.2d 995 II, supra, Vaughn at n.13. cases cited in 54. See (“The proper legislative history function of is to ambiguity, it.”). resolve not to create Service, Montgomery Inc. 55. See Charter Co., Metropolitan Washington Area Transit 193, U.S.App.D.C. F.2d at 1142. (1963); Peoples U.S.App.D.C. FPC, Natural Gas Co. Davis, generally K. Administrative Law denied, 316 cert. U.S. Treatise, (1970 Supp.) 3A.31 at 174-76. (1942); Hoover v. 86 L.Ed. 1769 Co., App.D.C. Intercity 286 F. Radio chairman, Congressman Moss, the rest of report is so different from House legislative history only interprets the bill”: any way does not vitiate in legislation bill is basic reason the House legislation and that the was passed strong was after the Senate different was there. Information Act and was Freedom the House reported to be out of about important I think this is just for the Committee, the Operations Government record to out point why the report House Katzenbach, Department

Justice Fortunately, different. as Mr. Dobro- —Mr. talked to up Wozencraft—came Mr. said, vir there have been a number of look, said, we Congressman Mossand can- which have cases all of said that support the There number bill. report House is so different that we have changes that have to be made. to look to the statute and that the House appeared emissary kind of as an I report not in any should way undermine of the former of this behalf chairman passed basic statute by Con- Congressman and I Moss subcommittee gress in 1966. wanted. the House partment Mr. Kass said with it. We ments. these ly almost gave enough. veto I don’t bill pointing out type specific we wanted. So twice, that there tried to it but there was an it is our it and I will submit it basically what was done under in to what the Justice details. I have a ever I was Not then was able to objections think time Report in which the Justice We wanted to specifically surprisingly, compromise pointed going implied where the have reading has into the House played should be out get permits already veto—I don’t submit. very from the Senate said a number the seventh implied eight the House move brief with it they language passed going sections in no amend- I threat— forward analysis kind of have to record, report. think real- long area into De it that the House ments in the not reliable as an item where, statutory language already adopted by the Professor Davis said:61 an effort House This background is relevant to the weight In this House committee’s statements at vari- restrictions written into the House com- The content of the law both Houses. ance with the mittee report. know the Senate would have concurred in the intent of ^[*] which initiated the whether basic here, they instance, ^[*] guides report change principle both legislative Report bill, Indeed, ^[*] Houses, of a have been reflects the intent of Senate Committee or the meaning congressional is quite elementary: should be accorded must ^[*] no one will ever single history. legislation. not of bill, depend ^[*] inserted House are just not the intent State upon ^[*] one. As Exemption Report’s description of was the why The reject reasons the courts will Kass 2. Mr. concluded:60 the House committee’s legisla- abuse of any in though Attorney think it was a sellout but tive even history, I don’t the getting it, it of really price overwhelming. the General supports event my legal statutory bill. It was advice both Allowing meaning the the of clear chairman of this and the drastically changed the committee words to be by the Information, gress, (7, 8, 11, 1973) Privi- of Executive 1st 122-6 59. Freedom Sess. 26 June Secrecy Hearings (testimony Benny Kass) lege, on (emphasis in Government: S. L. of add- ed). et al. before the Administra- Subcomm. on Subcomm. tive Practice Procedure and the Comm, Separation of Powers of the Senate (emphasis added). on Id. at 126 Intergovern- Judiciary and the Subcomm. on on Comm, Relations of the Senate on mental Davis, Treatise, 61. K. Administrative Law (Volume Operations 2), 93rd Con- Government (1970 Supp.) 3A.31 at 175-76. § interpretations with to the respect have lan- report would committee House statute, it guage may ma- of the one but Three consequences. many unsound upon depend legislative history first and inter- that acts (1) The House are: jor ones the pretations respect in to the identical of voice deprived enactment, language is used in one of the other that meaning of final always statutes. that second could acts House meaning but alter its the same bill adopt course, correct, Davis Professor it Of (2) The reports. through committee principle a well established courts commit- of the conference sound system legislation as an may subsequent look aid defeated, for House that would be tee legislation interpretation prior in the of second, the other when knows even acts subject dealing with the same or similar law always could make disagrees, House Indeed, Chief Justice Marshall matter.64 re- through the committee it chooses that, gath the principle stated if it can be (3) clear on which are Statutes ports. pari subsequent ered from a statute indi- become unreliable face would their meaning materia legislature what at law. of effective cia statute, tached to the words of a former legislative will this amount to declaration II Vaughn position of this Court meaning, and will govern of con action recently vindicated been has of struction the first statute.65 Representatives itself House of of the Applying principle, highly signif in the Sunshine it is “Government passing Professor Davis has recent icant the Government in the Sunshine 1976.”62 Act of Act, verbatim relevance of the Sunshine enacted carries over suggested the ly exemptions of in the Freedom interpretation of the Freedom most toAct Act, including specific Information Act:63 lan Information Thus, guage 5 U.S.C. Act, Information Ad- The Freedom of 552b(c)(2) open exempts from the Act’s Act, § Act, Privacy visory Committee meeting portions requirement meetings Act all deal Sunshine Government likely solely per “relate the internal subject openness matter with the practices agency.” sonnel rules and of an meetings. and of Each records House Report Act Sunshine its own Each statutes has function. four gives interpretation same narrow to this may be interre- of each statute provision exemption as the Senate did in 1965:66 provisions more lated to one or Furthermore, the various This includes meetings statutes. other relating identi- to an language solely agency’s often use that is internal statutes personnel practices. statute. rules and It is language with the of another in- cal protect privacy de- tended to of staff meaning language handling members cover legislative history and to pend 94-409, Legislature employed sense in which the Pub.L. No. 90 Stat. 1241. doubt used, phrases previously ful that sense is to be Davis, in the Seven- 63. K. Administrative Law adopted construing phrases. those Conse ties, (Cumulative Supp.1977) at 3A.00-1 quently, subsequent if a act on the same sub ject complete leg affords demonstration of the Lucas, g., E. W. A. Sheaffer Co. Pen language, its own islative sense of the rule (1930); Apfel App.D.C. F.2d 117 stated, requiring which has been the sub 94, 805, Mellon, App.D.C. de 59 33 F.2d cert. sequent incorporated forego be into the should nied, 585, 35, S.Ct. 74 L.Ed. 634 280 U.S. 50 act, expounding is in a direction courts CIR, 277, Joy (1929); App.D.C. v. 58 Floral Co. provisions the the law.” Chief Justice Mar (1929). F.2d 865 See District of Columbia 29 shall, Alexandria, 1, Alexander 5 Cranch Orleans, L.Ed. 19. 65. ria are to be provisions act. “It is to If, in a be observed subsequent construed introduced, together clause that acts in which show the of the same as forming pari mate act, one 66. News, Sess. H.R.Rep. pp. 2183, No. 880 ^[1976] U.S.Code (emphasis (Part I), Cong. added). Cong., & Admin. 2d strictly internal matters. It does in- preme implied not Court Exemption or dealing clude discussions information be should stretched to cover such situa- agency policies governing employ- tion. We agree; cannot this language of dealings public, ees’ with the such as the Supreme Court no means more than job or setting manuals directives forth the cautiously Court left open the procedures. question is the case functions As of what to exemption do about exemptions, closing with all of the may “where disclosure risk circumvention withholding permitted by paragraph agency regulation.” question this With the public should not be made if the interest left open, we have the problem confronted requires here, otherwise. analysis as our of the statutory language Exemption 2 and legislative its It thus appears by 1976 the House demonstrates, history Exemption 2 was not repudiated sweep- Representatives had designed protect documents whose disclo- ing language concerning 2 con- Exemption might sure risk circumvention agency report tained its 1966 on the Freedom of regulation, whatever would be merits of Information Act. provision. Exemption such a 2 is much rejection This Court’s Re House limited, more as we have described. We port recently has been vindicated thus sought hold that the documents Supreme Court. Five months after our de appellee exempt are not from disclosure II, Vaughn Supreme cision in Court under Exemption 2. We now appel- turn to Department of the Air Force et a l. v. Exemption lant’s claim under specifically legislative Rose67 considered the history Exemption quoted at some C. Appellant’s (b)(5) Claim II, length opinion from our Vaughn At the outset we Depart note Justice therein, approved reasoning our and like steadily diminishing ment’s on reliance Ex concluded, wise because we think “[A]nd emption 5 a ground for withholding primary Report focus House First, these documents. Attor U.S. might disclosures that en ney’s Office denied access a letter which regulated able the circumvent cited Exemption only ground aas we, too, regulation, rely upon ‘choose to public Then, denying access. in the District Report’ in this regard.”68 Court, the Government relied on Ex both concluding In Exemption its discussion of emptions court, 5 and 2. In its Supreme sum, Court stated: “In we Original the panel, Brief filed before that, think at least where the situation is appellant Department of Justice relied on not one may where disclosure risk circum 552(a)(2), Exemption Exemption § agency regulation, vention of Exemption 2 order, plus in that a section citing Exemp applicable subject to matters to such Cong tion as7 “relevant to the intent of a genuine and significant public interest. In a 27-page brief the Govern ress.”70 . Rather, the general thrust of only ment devoted pages the last two to its exemption is simply agencies to relieve argument Exemption under its In 15- the burden of assembling maintaining Reply page Brief the Government devoted public inspection matter in which the paragraph, one less than a page, reasonably could not expected argument. Exemption Supplemen In its have interest.”69 Memorandum, prior argument tal en banc,

From the words “at upon least where the situa- Government relied 552(a)(2), Exemption Exemption 2, not one where risk circumvention of order. 5 was agency regulation,” in that not even Justice argues that the Su- mentioned. 369-70, supra.

67. Note 10 Id. at 96 S.Ct. at 1603. Id., 366-67, U.S. at at 1602. 70. See note 110 infra.

772 First, suggested it 5 claim.74 it significant, this because

We think analysis contained in the Manual as the Government’s information that appears refined, sharpened and it from disclosure position protected its FOT Guidelines that 5 increasingly clear privilege” the “executive that attaches became to this case. We applicability had no simply predecisional which re communications agree. policymakers’ flect deliberative processes. Second, infor urged it Act,71 shields from Exemption 5 attorney protected by mation is the familiar mandatory disclosure privilege in Hick work-product delineated inter-agency intra-agency third, And, Taylor75 man v. it asserted which would not or letters memorandums these materials are “not discoverable party to a other than by law be available party litigation” a set because agency[.] with the litigation an guidelines prosecu forth for the exercise of exemption, it is language From torial discretion. We conclude that each of attempted has incor Congress clear these contentions is without merit. principles of the FOIA certain into porate Exemp Specifically, law. discovery civil Privilege 1. The Deliberative Process “to designed exempt disclo tion 5 [from Claim documents, only those docu those sure] evidentiary privi One of the traditional ments, normally privileged in civil dis leges available to the Government The test for determin covery context.”72 common-sense, discovery fall with civil context is ing particular whether documents process privil is set forth in House deliberative common-law in this “any internal Report, ege.76 privilege protects which states that This the “consult routinely be which would government by memorandums main ative functions” of through the private party “advisory to a confidentiality disclosed taining with discovery process litigation opinions, recommendations and delibera general be available to agency would part comprising process by tions of a words, particular a other if public.”73 In policies form governmental decisions are within eviden recognized falls document The privilege in ulated.”77 attaches to and, hence, nor would not tiary privilege ter- and intra-agency communications private party in mally be discoverable process preced part deliberative litigation the agen civil the course of adoption of an promulgation falls cy, then the likewise within document agency policy. essentially There are three scope Exemption 5 and is releasa First, it policy privilege. bases for this FOIA. ble under the protects creative and candid consid debate agency, within appeal Depart- brief on eration alternatives original In its and, thereby, improves agen the quality relied three distinct evi- ment of Justice Second, dentiary cy policy privileges support Exemp- protects decisions.78 71. 5 72. NLRB v. p. (1966), 149, 95 2418 Brief H.R.Rep. U.S.C. ^[1966] S.Ct. (emphasis added). § Appellant Sears, No. at 1515. 552(b)(5). U.S.Code 1497, Roebuck & at Cong. Cong., 2d Co., 421 & Admin.News, Sess. U.S. 10 at 77. grounds, L.Ed.2d D.C. Jena, L.Ed.2d 361 curiam, cert. Corp. Carl 121, 40 denied, v. Zeiss F.R.D. 128 U.S. Renegotiation 421 482 (1975). (1967); U.S.App.D.C. 389 U.S. F.2d Stiftung 318, 710 324 168, Grumman Aircraft 952, (D.D.C.1966), v. Board, V.E.B. Carl 10, 88 S.Ct. rev’d on 384 S.Ct. 157 F.2d 1491, U.S.App. aff’d 334, Zeiss, other Eng. 979, per 44 19 U.S. L.Ed. Sears, Co., 78. See NLRB v. 421 U.S. Roebuck & (1947). 1504; 95 S.Ct. Montrose Chemical Louisell, Train, Federal Evidence 228-231 270, 273, 76. See Corp. Sirica, (1978). generally U.S. Nixon F.2d 121-23, App.D.C. 763-65 J., (Wilkey, dissenting).

773 by private that result available law to from the confusion would a party in litigation to oc exposure discussions with the premature agency: from Agency wit affecting it policies before the had curring argued nesses that a full and frank ex third, upon.79 And it been settled actually change opinions would be impossible if protects integrity decision-mak all internal communications were made by confirming “offi itself process public. They contended, merit, and with by they be what decid judged cials should that advice from staff assistants and the they ed[,] not matters considered before exchange among of ideas agency person making up their minds.”80 nel would not be completely frank if were forced to “operate in a fishbowl.” legislative history clear, As the makes Moreover, a Government cannot adopting in Congress’ principal purpose Ex- always operate effectively if it is required 5 emption protect confidentiality was to to disclose or documents information pre-deeisional process. deliberative which generated it has received or before Report states: it completes process of awarding a Exemption “inter-agen 5 relates to No. issuing order, contract or decision or cy intra-agency memorandums or let or regulation. This clause is intended to which would not be available law ters exempt from disclosure this other private party litigation a with to information and records wherever neces It agency.” pointed was out in com without, sary time, at the same permit many agencies ments it ting indiscriminate administrative secre be impossible any would to have frank cy. exempts S. 1160 ma legal policy discussion of matters in terial “which would not be

writing available writings if all such were to be law to a private party litigation with subjected public scrutiny. It ar Thus, merit, gued, agency.” and with internal memo efficiency of routinely be randums which would dis greatly hampered Government would be if, respect legal policy private with mat closed party through ters, agencies all were pre discovery process litigation Government maturely “operate forced to fish agency would be available to the general bowl.” committee is convinced public.82 general proposition,

the merits of this but expressions Guided legislative these attempted exception it has delimit the intent, uniformly the cases hold Ex narrowly as as consistent with efficient emption designed embody 5 was the tra operation.81 Government ditional evidentiary privilege that attaches Report House described the predecisional, deliberative communica terms: similar Thus, partic tions if a agency.83 within an Inter-agency or ular intra-agency 5. mem- Government document falls within scope evidentiary orandums letters privilege, then 80. Grumman Aircraft 79. D.C. at F.2d gotiation 325-326. Carl v. v. Coggeshall, S.Rep. FTC, See Grumman Aircraft Board, 482 F.2d at 698, Zeiss, Jena, 129, 146 (1960); Board, 706-708 No. note 77 482 F.2d at U.S.App.D.C. note Carl note (1971). U.S.App. supra, Eng. Corp. 77 Zeiss 718; supra, Boeing Airplane Eng. Corp. Cong., supra, 237, 245-246, Sterling Drug, 106, 112, Stiftung U.S.App.D.C. 157 v. 40 F.R.D. at 1st Renegotia- U.S.App. v. Sess. V.E.B. Rene Inc. 450 Co. at 82. pp. fishbowl.”). tion that sense-common law U.S.App.D.C. U.S. at U.S. at Open Rosen, E. H.R.Rep. basically 2418, g., Market ^[1966] 150, 86, NLRB v. the Government cannot No. 93 S.Ct. 95 S.Ct. a codification U.S.Code Committee, 1497, (“We Sears, privilege, 565 F.2d at 1504; 827; 89th Cong. Admin.News, consider Roebuck & supra Cong., Merrill v. Federal EPA v. i. of the common & e., 197, 523 783; note operate 2d Sess. 10 Mink, Co., recogni 33, Vaughn in a 421 materials way, pre-decisional another are exempt mandatory disclosure from likewise exempt merely they pre not because are the FOIA. under decisional; part must a they also be of written document In order for a agency the deliber give-and-take the evidentiary —of traditional by this covered which it process by ative the decision disclo — shielded from and hence privilege, self is made.85 Act, the at least of by Exemption 5 sure First, the be met. must prerequisites two Applying principles to the docu- these The “pre-decisional.” must be document in sought by appellee Jordan ments be protects only communications privilege case, the it is clear neither withheld superiors that are and subordinates tween of nor the FOT Guide- portions the Manual an adoption the of actually antecedent pre- protection lines falls within that occur policy. agency Communications process embodied in decisional deliberative already settled been policy a has after Exemption 5. Both documents are instruc- pro example, a communication upon —for by Attor- guidelines or issued the U.S. tions established implementing or an mulgating They and at his subordinates. ney directed ra The various privileged. not policy —are positive consist of rules that create definite once a evanesce privilege for the tionales Attorneys standards for Assistant U.S. been Ces policy decision has reached. final of follow. substantive content these Supreme lex. As the ratione: cessat sat already guidelines by has been determined held in NLRB Sears: Court may Attorney. they the U.S. While not be construed, calls for properly Assistant, absolutely binding on each ‘opinions interpreta all and “disclosure of express do the settled and estab- guidelines effec embody agency’s which tions’ policy Attorney’s lished of the U.S. Office. withholding policy, tive law and and the rep- The Manual FOT Guidelines thus papers agency’s which reflect of all promulgation implementa- resent working process in the of group thinking already policies that have been its policy determining its what out the Manual and FOT adopted. Since shall be.”84 law undeniably govern all of- Guidelines However, enough it is not that a communi- work, fice’s constitute “effective adoption precede cation policy” “predecisional” thus neither privi- prerequisite The second policy. nor “deliberative.” leged status is communication “deliberative”, is, must ac- must be Attorney Work Product Claim which tually process by be related In the landmark case of Hickman v. emphasized As policies are formulated. we Supreme Taylor,86 the Court announced Rosen, timing not Vaughn v. alone does enjoys product” attorneys that the “work is specified a document determine whether qualified privilege discovery. This protected privilege: subsequently and codi doctrine refined assert, in the context enough is not [I]t 26(b)(3) in Rule fied Federal Rules of used Exemption 5, that a document is Procedure, provides pertinent Civil by a decision-maker determination part that87 Rather, to come policy. . party discovery Ex- obtain of docu- within privilege, within the thus tangible things ments and . . pre- must be a direct emption the document pared anticipation litigation that it or for process part deliberative trial or expresses party for another or or for makes recommendations representative Put legal policy party’s matters. other opinions U.S. at at 1517. 86. 329 67 S.Ct. 91 L.Ed.2d 451 421 U.S. 95 S.Ct. 194-95, F.2d at added). 26(b)(3) (emphasis Fed.R.Civ.P. 1143—44. party Supreme Court showing that the seek- articulated the rule’s only upon a has substantial need of the rationale in the Hickman ing discovery case:91 preparation of his case materials in open Were such materials to opposing without undue and that he unable demand, counsel of what on mere much equiva- hardship to obtain substantial now put writing down would remain by other means. In lent of the materials attorney’s thoughts, unwritten. An here- discovery ordering of such materials inviolate, tofore be his own. showing required has been when the Inefficiency, sharp prac- unfairness and made, against protect the court shall dis- inevitably develop tices would in giv- the impressions, mental conclu- closure of the legal preparation advice and in the sions, opinions, legal or theories of an of cases legal for trial. The effect on the of a attorney representative par- or other profession would be demoralizing. And ty litigation. the concerning interests clients and cause justice be poorly would served. work-product This rule is not limited to parties; the case law establishes private It is clear from this statement that applies prod work privilege purpose of privilege is to encourage as attorneys ucts of well.88 Government effective legal representation within the system framework of the adversary by re Report The to the FOIA states moving fears thoughts counsel’s that his 5 “would include the work Exemption that will by information be invaded his adv agency attorney and ing papers of the docu words, ersary.92 In other the privilege fo which would come within the attor ments cuses on the integrity adversary of the trial ney-client privilege applied private if process itself and seeks to -legislative ensure that such Pointing to this his parties.”89 proceedings degenerate not do into N. L. B. mere tory, Supreme Court held in R. “battles of wits.”93 This focus on Sears, the in Congress specifically that Roebuck tegrity of trial process reflected is in incorporate Exemption within 5 intended specific limitation of the privilege to attorneys’ work-product privilege.90 Thus, materials in “prepared anticipation of liti particular if a Government document gation or for trial.”94 scope work-product falls within the exempt it then is likewise privilege, work-product In view of the rule’s under context, disclosure, FOIA in the virtue lying rationale, we think it clear that the case, the Exemption Depart In this 5. sought Manual and by ap FOT Guidelines suggests of Justice that the Manual ment pellee do privilege. not fall within this Nei sought by appellee Guidelines Jordan ther the Manual nor' the Guidelines were privileged work-product are U.S. prepared anticipation in of a particular tri and, hence, Attorney’s are covered Office al; fact, were not they prepared even This does Exemption argument 5. not anticipation general. Rather, of trials in analysis. withstand these promulgated gen documents were eral guide standards to work-product The rule does not extend to the Government lawyers determining every generated by written an whether or not document bring an individual to trial attorney; it does shield from the first everything lawyer purpose place. guidelines does. Its that and instructions set narrow, is more its reach more modest. forth in these documents do not relate to p. 2418. United E. S.Rep. g., States, ^[1966] Kaiser Aluminum & Chemical No. U.S.Code F.Supp. Cong. Cong., 1st & 141 Admin.News, Ct.Cl. 38 Corp. Sess. 92. See 93. Hickman v. Corp., 329 U.S. at (Jackson, J., concurring). Republic Taylor, Gear Co. v. 67 S.Ct. at 393. (2d U.S. at Cir. 1967). Borg-Warner U.S. at S.Ct. 1504. 26(b)(3). 94. Fed.R.Civ.P. work-product privileges rested its Ex- or on-going prospec- conduct either prose- on trials; emption solely in- claim an asserted not include factual tive do conclusions, Reply privilege. cutorial formation, discretion impressions, mental legal strategies pertinent part: Brief or states opinions, legal theories tri- prospective or on-going relevant We contended the materi have not guidelines these disclosure of al. law “pre-deci als in this suit are at issue no effect on could have conceivable “work-product.” ... sional” on-going prospec- conduct of an actual the concern of point Instead our reasons, we conclude trial. For these tive was to the secre Exemption protect Five the Manual and FOT Guidelines normally be cy of materials which would products” as “work privileged not be protected evidentiary privilege. therefore, and, discovery the Justice civil protect “Pre-decisional” memoranda 5 claim must fail Department’s privilege, ed the executive under predicated the extent privi lawyer’s product equally work privilege. leged. Similarly, prosecu the of exercise a normally privileged; is torial discretion Privilege Discretion

3. The Prosecutorial through defendant cannot either criminal by civil in the criminal case or discovery the appeal, initial on In its brief litigation, go prose behind the decision to only in one of referred Department Justice how cute to discover the decision privilege” and to the “executive paragraph the Discovery guidelines of for reached. privilege “work-product” lawyers’ prosecutorial exercise of discretion the withholding portions of grounds for the through the FOIA would circumvent under Ex and the FOT Guidelines Manual privilege.97 by devoting two Seemingly, emption 5.95 Exemp on of short section paragraphs its is extent of Department’s This the full this, main on placed emphasis tion 5 argumentation regarding of a the existence privi documents were claim these “prosecutorial privi- so-called discretion ex were related to the leged because lege,” say and we must that we are some- De prosecutorial discretion. The ercise of what unclear as to exact contours of partment’s brief states:96 privilege asserted. or in a civil prosecution In a criminal acknowledges Department of Justice a criminal subject action the appellee Jordan does not seek access to exer- reasons behind an prosecution, the reflecting prose- for documents reasons not discretion are prosecutorial cise of cution cases non-prosecution particular or a in a Certainly, defendant discoverable. Appellee or explaining such decisions. to discover permitted case is not criminal only policy guidelines seeks and manuals of policies which thought and processes general prior to applicability, established bring prose- went into decision of a deci- independently prosecutorial and prose- . exercise of cution. . The any particular Depart- sion in case. The privileged. Accord- cutorial discretion is position ment’s thus seems to boil down to setting guide- forth ingly, memoranda prosecution any particular this: privilege are of that lines for exercise case, usually cannot criminal defense litigation. party a not discoverable reasonings the various and discover factors prosecute; although fleeting, particular behind that decision to spite specific, In its therefore, guidelines delineat- and “work- Government “predecisional” mention Brief, to be in all crimi- Original supra, applied the standards in its product” factors nal which cases shall be Justice cases to determine Reply Brief the prosecution are not discover- on the executive diverted reliance disclaimed Appellant Reply Appellant at 14. Brief Brief for omitted). (case 26-27 citations Id. at say a This a broad To posits able in civil suit. Attorney United States seemingly It would cover privilege indeed. must literally every treat offense ev- bearing ex- all on the any ery information delegate offender alike is to him an discretion, prosecutorial task; ercise impossible concept course this generally. in all cases particular cases but negate Myriad discretion. factors enter prosecutor’s can into decision. Executive Branch persons may Two have committed what is claimed, has, quite or has Government precisely legal the same offense but the unique privileges; number of some prosecutor compelled law, is not duty law, others are pur rooted the common or tradition to treat them the same as to portedly constitutional doctrines. based on charges. On the he contrary, expected privileges are following governmental to exercise discretion and common sense (1) well-recognized:98 privi state secret if, to the end example, one is a military, lege concerning diplo matters young first older, offender and the other matic, (2) an intelligence significance;99 record, awith criminal or one played a privilege” covering inter- “executive lesser and the role, other a dominant one intra-agency communications connected instigator follower, and the other a decision-making policy-making prosecutor can and should take such functions;100 (3) a re privilege covering account; factors into no court has ports investigations;101 ongoing jurisdiction inquire into review his identity privilege covering informant’s iden decision. persons who come forward with tities It is assumed that the United States useful in civil or criminal information Attorney will perform his duties and ex- cases;102 (5) a Presidential-executive ercise his powers consistent with his separation powers rooted in the of privilege, oaths; and while this discretion is subject doctrine, covering communications just to abuse or judicial misuse as is dis- advisors.103In among President his cretion, deviations from his duty as an addition, to the United States has available agent of the Executive are to be dealt privileges appli it the familiar common law by with his superiors. citizens, private example, to cable attorney work-product privilege. remedy ultimately In re lies our within the search, however, we have power found no estab establishment where and discretion evidentiary privilege pertaining gen lished reside. The President has su abundant bearing to on the exer erally pervisory information disciplinary powers —in prosecutorial cluding cise of discretion. summary dismissal—to deal with subordinates; misconduct of his it is not Department appears Justice the function judiciary to review claim of privilege essentially rest its two the exercise of executive discretion first lines of cases. The line cases stand whether it be that of the President him proposition that a prosecutor’s for the exer- self or those to whom he has delegated is cise of discretion not reviewable powers.104 certain of his Representative of courts. these cases is our States, decision Newman v. United The second line of cases relied on by the length Department we where discussed nature Justice involve situations prosecutorial discretion: which criminal defendants have challenged Louisell, generally Roviaro, 98. See Federal Evidence See United States v. 353 U.S. (1957). 224-238. §§ 1 L.Ed.2d Helms, 77-1923 77-1922 & Halkin v. Nos. 99. See Nixon, 103. See United States v. 418 U.S. 1978). (D.C.Cir. 16June (1974). 94 S.Ct. 41 L.Ed.2d 1039 Corp. v. 100. See Kaiser Aluminum & Chemical 104. 127 481- States, supra note United Louisell, Federal Evidence § relevant, unconstitutionally demonstrably material that is i. dis prosecutions their e., that defend which would tend to establish the ele cases hold criminatory. These colorable preliminary a ments of his defense of selective and dis ants make must prosecution before criminatory prosecution. selective Even under the showing of prosecuto to discover ruling entitled liberal the test for become district court’s such a necessary prove relevancy rial materials disclosure should Berrios,106for United claim.105 In States specific defense for which evidence Govern appellant, the cited example, sought, confidentiality. its lack of it is court order a district appealed ment with government is entitled have be motion to dismiss granting defendant’s held from the defendants all material to comply failure cause of the Government’s relate the memorandum which does not disclose to requiring it to an order prosecution. to the defense selective memorandum a Government defendant hand, the government On the other is not support defendant’s claim of sought in entitled, generalized on mere claim of a discriminatory prosecution. selective and confidentiality, to withhold material that solely had been based claim Defendant’s relevant to the defense.108 affidavit effect upon his counsel’s We fail to see how the cited authorities indicating vin facts a that he believed that support to Justice its part Govern dictive motive on general privilege assertion of a relating stated The Second Circuit ment existed. prosecutorial regard- discretion. The cases showing preliminary “upon meagre prosecutorial non-reviewability grant have made doubted that it] [it are simply inapplicable. discretion Our de- production hearing ed a ordered today challenge cision does not these cases. Nevertheless, prosecutor’s papers].”107 [the separate The issue of reviewability hearing permit decision held guidelines distinct from the issue whether information subpoena and to authorize governing the prosecutorial exercise of dis- possession was a Government’s within the cretion should be made available to the trial court’s discretion within the matter public. There are no some hope doubt who court had not abused and that the trial prosecutorial guide- that the disclosure of ordering the to in Government discretion judicial lines will of prosecu- lead to review recom turn to him its memorandum over but, action guidelines; torial based on those held fur mending prosecution. Court that issue is not us in before this case. ther, however, the court went district We also that the prosecu- find selective directing too in the Government to sur far Department upon tion cases relied the of the for release to de render memorandum distinguishable. are “any portions thereof which the Justice These are fendant of cases required are not to be criminal in which defendants are seek- court shall determine explained: particular to reasons kept pros- confidential.” Court access the for ecution in Even if individual cases. there is object Although does not to Berrios a privilege relating type particu- to this of portions prosecu the redaction of information, laristic the case law offers no found court to tor’s memorandum for this support position privilege to from disclosure protection be entitled guidelines general extend appli- would to confidentiality (e. g., grounds on the cability prior indepen- to and established grand jury testimony, the substance of dently any particular of the decision case. 6(e), F.R.Crim.P.) he at see Rule would Moreover, criminal, 17(c), these under F.R. because cases are be entitled Rule most hearing governed by discovery at only they to criminal Crim.P. introduce 106. Note 105. E. Swanson, supra. g., v. United States Berrios, (8th 1975); United States Cir. 107. (2d 1974); United States 501 F.2d 1207 Cir. at Berrigan, 482 F.2d 171 (3d 1973). Cir. 108. Id. at 1212-1213. 16(b) Exemption

rules, vigore. of the Federal time 7 ex including proprio Rule That provision applies express to Procedure Rules Criminal discovery reports, memo exempts from ly (7) investigatory compiled records docu randa, government or other internal purposes, law enforcement only but con agents in by government made ments to extent production investigation prosecu with the (A) nection such records would interfere with rule, . . It is this of the case. enforcement proceedings privilege applicable any general than rather view, In our this 7 claim Exemption was not context, posed civil that has discovery timely by the Department, made and conse seeking obstacle to criminal defendants is quently there no need to consider its prose their individual probe the basis of merits.111 cution. is basic It that the FOIA establish range We have thus examined statutory es a presumption that all federal recognized evidentiary privileges and person.” available “any records are This upon by Department authorities relied is presumption only by rebutted evidence Justice, simply have concluded and we presented by an agency the item privilege exists such recognized that no sought exempt from disclosure under one portions the withheld protect of the nine exemptions. enumerated Guidelines from dis- Manual and the FOT proof the full agency bears burden when discovery in the civil context. closure exemption apply.112 claimed to To Hence, court the district was correct meet burden the agency must identify holding inapplicable 5 was specific statutory exemption upon relied these documents. demonstrate that the applies question. the documents in This showing (b)(7) Claim Appellant’s D. must be made at the district court level. prevail An cannot an exemption on Initially Department Justice re that it has raised either the agency 5—in on one exemption Exemption lied — level or district court and that it has denying request docu appellee Jordan’s invoked for the first the appellate time in Court, Depart In the ments. District court.113 defense, two expanded relying on ment 2 and 5. In its exemptions Exemptions principle only This derives not from the — court, the appellate in this itself, initial briefs basic requirements of the FOIA but its reliance continued precept also from fundamental that is exemptions,-plus these two reference appeal sues on are to be confined those however, 552(a)(2).110Astonishingly, in a duly presented to the court.114 trial This reflects, supplemental process filed one month principle part, memorandum due con siderations, before banc for argument to oral this en if the Government does prior not court, Department the invoked for the first raise a as a particular exemption defense in 16(b) added). (emphasis 552(a)(4)(B). 112. See 5 U.S.C. § 109. Fed.R.Crim.Pro. in, only Exemption brought 7 also but

110. Rosen, Vaughn U.S.App.D.C. Cf. 173 at congressional as a intent: manifestation (Court Appeals 523 F.2d at 1143 “We have never claimed the materials applying exemption not consider rationale for Exemption in under issue this case fall Seven.” Court). in not raised District Reply Appellant at Brief of McMillan, U.S.App.D.C. 114. Doe Furthermore, issue, this on 1304 n. rev’d on other dissent, throughout Judge his MacKinnon grounds, 412 U.S. opinion cites and his the relies on own (1973). Avirom, L.Ed.2d 912 Miller v. also panel Ginsburg, Feldman & Bress v. Federal U.S.App.D.C. 367, (1968); 384 F.2d 319 Administration, Energy Freeman, U.S.App.D.C. 385, Calhoun v. (1978). By 591 F.2d 717 order of this entire F.2d 386 court, panel opinions Ginsburg va- all were cated. rule, and in tary applicable in most cases will court, party requesting the the district bar, appellate test an court will challenge and the case at opportunity no have respect to put forward for the evidence aside a claim agency’s brush exemption. without reasonable appeal time on applicability first We find that explanation. cause or are at there standpoint, practical From that warrants invo- no reason presents case agency which an situations least three residual discretion available cation of the on exemption invoke an led to might be under 28 U.S.C. First, agency § an time. the first appeal the first exemption for an might invoke a tactical gain appeal in order on

time III. CONCLUSION Clearly, it requestor. advantage over position of Justice’s ulti- Department pur- remedial with the broad not consistent policy” argu- mately “public reduces to a agency such permit the FOIA to pose Second, might confidentiality be agency maintaining ment for an maneuvering. first for the sought by appel- an invoke the Manual and Guidelines forced to a substantial because of appeal is that disclosure time lee Jordan. The assertion of the case context in the factual change “tip potential of these materials would off” appli- development of an interim because on how to break the law and avoid violators Third, agency doctrine. legal cable Thus, according to the De- prosecution. following “afterthought” have an might partment, releasing these documents will Normally, if proceedings. court district who seek to circumvent only benefit those consider- thorough proper gives law; law-abiding gains citizen noth- disclosability of documents ation to Moreover, ing. public if announcement of is, should, it receives that when when made, prosecution policy instance, it should then the first request in contends, Attorney placed will the U.S. be exemp- relevant possibly cite all able to position giving carte blanche stage. How- appellate well before the tions encouragement to certain criminal public cir- could be ever, that there recognize we situation, with this activity. Faced mistake, where, through pure cumstances away guide- is to do with the alternative attorneys had not invoked the Government prosecute every criminal lines and either court. the district exemption in correct violation, allow a likely, policy or more other- of the material the value If certain offenses exist non-prosecution of were subject to disclosure would be wise rosa, controlled, on a sub less and less uni- informa- g., confidential obviously high, e. form, argu- word-of-mouth basis. These foreign rela- the nation’s compromising merit, simply much but ments have appeared and it security, or national tions pertinent legal posed issues under protected intended to be likely was highly the FOIA. exemptions, the nine enumerated one of appellate effect, Department urges the Justice 28 U.S.C. In under then “remand the have discretion this court to balance the interest court would further require . such particular and . protecting cause these documents just may be under had as any legitimate to be proceedings against against might discretion Such the circumstances.” plaintiffs or other members interest these example in the second be exercised likewise utilizing have in these public may above-cited. documents. This is an exhortation to bal- the individual documents ance disclosure of may there be situa- foreseeing that By against the particular in this case involved court’s discretion appellate where the tions confidentiality. This the public interest in a remand for to order be exercised should The Freedom of Informa- Court cannot do. court, we by the trial consideration further certainly permit not a court to tion Act does either the imply that by any means do not in public good or harm involved balance the free-rang- a court has appellate or district any of confidential retention a salu- a disclosure or cases. It is in FOIA ing discretion

781 balancing in protect document. The to individual these documents rewriting in or without public interest disclosure nondisclosure the statute. This we de by Congress by categories. cline do. has been done reflection, Affirmed it becomes clear for as Modified.

On in public interest dis- court balance BAZELON, Judge, Circuit concurring: nondisclosure, with reference to closure or case, documents involved in a particular I opinion, concur in court’s and write completely the effectiveness destroy separately only to stress what I view as an of Act. This of the Freedom Information important feature of this decision: hereaf what before the procedure was occurred guide ter the settled standards which Act in 1966. The whole passage of the United States Attorney’s discretion will be Act, above, analyzed is to scheme of the as Bench, available to the Bar the first, 552(a) particu- in decree: Section large. at principal purposes One are lar methods which all records to be the Freedom of Information Act is to elimi public, (1) whether made available nate “secret law.”1 practices The settled (2) or published Register, in Federal government, deciding which cases copying, for inspection made available prosecute and which eases to divert from upon request; or to be made available are, “law,” the courts if not codified at least second, following the of dis- mandate important as any as statute to the individu closure, 552(a) are the nine Section listed charged al with a crime. exemptions. specific enumerated guide prosecutors standards which [T]he exercise of their discretion are as any question

The whole of whether Gov- a part much of the law rules document should be disclosed ernmental or Indeed, applied in impact court. protected against is a matter many such standards is more decisive for legislative public policy for determination in defendants than of any legal other the first instance. There is no constitution- rules. question al involved here on which a court might express feel free to itself. The whole States, v. U.S.App.D.C. Scott United 136 question of what is to be disclosed is one on 377, 390, 264, (1969). 419 F.2d 277 Congress spoken precise,

which has public availability general of these enumerated detail. policy manuals will serve fundamental in erred, Congress

If Congress justice system by has has terests the criminal erred, and it helping prose other assure that the exercise statute, even-handed, rational, court to rewrite a in which we cutorial discretion is might intent, consider to have been omitted neces statutory and consonant with sary items in list exemptions against proper exercise touchstones making disclosure. See, g., of such exemp such discretion. e. Hutcherson “[T]he 274, is the legislature, States, tions function of the U.S.App.D.C. not United 120 284- statute, 287, 964, (1965) (Bazelon, the court.”115 On the face of the 972-977 legislative history, on its J., concurring the Manual and dissenting), C. cert. de sought by appellee nied, Guidelines do not fall L.Ed.2d U.S. specific language (1965).2 within the of Exemption prosecutors’ Since discretion This court cannot write all but in individual unreviewable Committee, Open Judge cogently 115. Merrill v. Federal Market Leventhal has identified one U.S.App.D.C. supra refusing note important concluding at reason for Burger ineq F.2d at 787. Cf. Chief Justice guidelines might in T. V. lead to disclose these Hill, 153, 195-198, v.A. 437 U.S. 98 S.Ct. uitable treatment defendants. of some 2302-03, 57 L.Ed.2d 117 concurring op. U.S.App.D.C., at -- of 591 F.2d. Sears, Co., 1. N. L. R. B. v. Roebuck & 421 U.S. 132, 153, (1975); 95 S.Ct. L.Ed.2d 29 IRS, 301, 303, Schwartz 1303, (1975). only 2 relates to the inter Exemption No. important cases, all the more it is practices of an personnel rules and nal be informed the courts public and Examples may of these be rules agency. apply prosecutors which criteria general of facilities personnel’s parking use as and what prosecute which cases selecting hours, lunch statements regulations of bring.3 charges to leave, to sick and the like.3 policy of of the Freedom appropriate I find Report stated: The House designed to Act, Information inter solely Matters related to the 2. govern- of processes sunlight on the shed practices nal rules and personnel illuminating rays on ment, direct its should rules, guidelines, and agency: Operating of the criminal aspect vitally important this in procedure manuals of for Government process. vestigators or examiners would be ex . .4 empt from disclosure joined by LEVENTHAL, Judge, Circuit view, Exemp- my In the critical words ROBINSON, III, Cir- W. SPOTTSWOOD Exemp- and “internal.” “solely” tion are concurring: Judge, cuit sought applies only when the matters reser But I have in affirmance. I concur the inter- solely are related Wil Judge aspects to certain vations as prac- internal personnel rules or to the nal Its Exemption 2.1 concerning key’s opinion agency. of an tices history have been wording legislative plain what is internal The focus on commentary. It subject of extensive summarizing paragraph of Rose. from the to refer to the present purposes suffices summaries litigation The Rose involved case Air Dept. opinion Court’s Supreme hearings prepared by of honors and ethics 1592, Rose, 352, 96 Force v. 425 U.S. S.Ct. administering the hon- the cadet committee level to and at a lower 48 L.Ed.2d Academy, summa- or code of the Air Force Vaughn v. Rosen II.2 opinions squadroom on posted ries that had been Academy boards and distributed to bulletin that the Act does provides faculty Supreme and officials. Court apply to matters that are— not 369-79, 1603): (425 at said U.S. at person- the internal (2) solely related sum, that, we think at least where In agency. practices rules and nel not one where disclosure the situation is this agree adoption word- All agency regula- risk circumvention Congressional policy in 1966embodied a tion, Exemption applicable 2 is not a narrower reach for the ex- effectuating subject genuine to such a matters provided for previously than that emption exemp- significant public interest. The relating to the internal “any solely matter with- designed tion was not to authorize Rose, agency.” management of an U.S. holding except of all matters otherwise 1600. The issue is the at 96 S.Ct. at propri- bearing directly secret law as narrowed. extent public. ety of actions of members of Rather, general exemp- thrust of the Report stated: The Senate view, fully supported 2. 173 3. The ABA has rec- “opinions” develop ommending prosecutors The word is used here to include Judge Wilkey’s opinion panel, discretion, for the policies guide both but statement concurring opinion. Judge Both Leventhal’s public. “The these disclosed Rose, Wilkey’s approval Judge are cited with by having served interest will be best 365-66, Judge 425 U.S. 96 S.Ct. general policies, guidelines procedures at 425 U.S. 370 n. 96 S.Ct. 1592. Leventhal’s and, indeed, known to the bar to the courts.” Relating to the Prosecution ABA Standards Cong., (1965) S.Rep.No.813, 3. 89th 1st Sess. (commen- 1971) (approved draft 2.5§ Function Cong. p. U.S.Code & Admin.News tary). Cong., H.R.Rep.No.1497, 2d Sess. 10 552(b)(2). 5 U.S.C. § p. Cong. Admin.News U.S.Code & explicitly incorporated into agencies of the Justice simply is to relieve Bren opinion (425 366-67, maintaining nan’s in Rose U.S. at assembling of burden 1602): in which Ct. at matter the S. public inspection for reasonably expected be could not For the reasons Judge stated Wilkey, case summaries have an interest. The and because the primary we think focus description. They do not fit that plainly Report House was on of merely sig- internal matter with are not disclosures that enable the might regulat- concern rou- They do not nificance. ed agency regulation, to circumvent we entails no matters. Their disclosure tine rely upon too “choose to the Senate Re- burden. We particular administrative port” (Emphasis regard. added.) Ap- the Court of agree with therefore Rose, II, Vaughn Neither nor Jordan in- that, interpreta- peals given Senate volves an instance where the Senate Re- tion, withholding of the Agency’s “the port only purports to offer exam- —which preserve an- (as case summaries edited 2, of not an ples Exemption exhaustive by reliance on onymity) upheld cannot be catalog flatly inconsistent with the —is exemption.” the second Report. Judge Wilkey House seems to as- Report of the situation that the House sume to be disre- legal posture is the What garded point if it speaks first sentence to a that is of not also reserved specifically Report. addressed “where disclosure Senate That is passage, above one passage quoted sense of the agency regula risk circumvention may Justice Brennan’s (at opinion. it Judge Wilkey puts tion?” at 771 of U.S.App.D.C., --- of Supreme was hospitable Court F.2d) simply this consideration Report provided House insofar as an “ex Exemption 2. I part triggering no plays emption of that might disclosures enable view, disagree. my Exemption ap In 2 is regulated agency regula to circumvent where the document consists of in plicable may That tion.” feature not be determina government ternal instructions to such offi tive but it is material. And when what is investigators bank cials examiners. involved internal instructions to such permit In such case disclosure would cir officials as bank examiners and investiga law, cumvention of the and there is no tors, and permit revelation would circum substantial, valid external interest of the vention of law regulations by regu community at revelation. large in That lated and there is no substantial valid ex presents composite interest, a matter involves ternal there is the essential quality solely internal personnel predominant rules and internal internality6 contemplated purposes practices by Exemption of an of mak applicable. Apart from matters taste involved in Judge Wilkey Judge be of the view Wilkey’s reproach seems to House members supported solely “chicanery” interjecting that this leg construction is belated (at --- of Report, Report history the House islative U.S.App. and that must be D.C., F.2d), nullity. plain per treated as a It is 768-769 of 591 it should Report haps House that in persuasive generally brought spring not as out Report, as the Senate which is more con at the outset the House hearings gruent liberalizing with months pur prior Report, Moss, pose legislation.5 Congressman But the House John E. chairman of the subcommittee, Indeed, is not a Report nullity. it was while attended committee Report (1975) (Leven- “The 523 F.2d House is more restrictive. Gen- thal, J., then, erally, concurring). Report the Senate be taken as keeping purpose more overall Rosen, Vaughn U.S.App.D.C. questions disclosure. But that not answer does 201-02, (1975) (Leven- 1150-51 any particular provi- about the construction of thal, J., (“solely” concurring) given is not to be Rosen, Vaughn sion.” construction). an extreme Kass, fairly that does not characterize the case at Exemption Benny said this counsel bar. 2: intended to What this was

Mr. Moss. given to Exemption such as the manuals If is not this was instances cover then I must acknowl- interpretation, kind of are handed to an exam- procedure that edge sympathy opinions some for the examiner, savings bank or iner —a conviction that implement Congress’s examiner, guidelines given to or loan 552(a)(2)(C) (for avail- concerning actions § agent. F.B.I. an manuals) contains ability of administrative attorney general Norbert assistant While implication an of non-disclosure for enforce- wording that different remarked Schlei ment manuals “where the sole effect of provided accomplish to be would have be to enable law violators disclosure would confessedly “just he objective, this escape detection.” Hawkes v. Internal top my head.”7 And the talking off the Service, 787, (6th Revenue 467 F.2d Cir. its own reasons Department of Justice had also, 1972). Cox v. of Jus- wording'for the ex preferring broader for tice, 1302, (8th 1978): Cir. emption. “Thus, require FOIA does not disclosure of any portions [Drug of the manual Enforce- this, join judg- Having said all I in the Agency Agents ment that relate to Manual] of the court because I do not consider ment housekeeping matters or information internality, predominant to be a case of impede law enforcement efforts.” would inter- rather a case of substantial but by disclosure that is not offset an est in Judge MacKin Upon consideration of of law preventing in circumvention interest dissenting opinion, I am inclined to non’s all regulations. policies involved agree Exemption should be con procedures. De- post-violation relate to support judg of the district court sidered legitimate have a fense counsel involved ment, in view of the fact that the especially knowing general guidelines interest solely court complaint and the district relied vel non. Instructions prosecution for 552(a)(2) majority proceeds and the on on § Attorneys are di- Assistant United States However, I ground. a different am of the government typically rectives to a class trigger Exemp this case does not view that relatively period of service for a modest only applies “investigatory tion which they resign, represent When often to time. compiled pur for law enforcement records defendants, them their they take with before us are poses.” general What is in guidelines. This is not knowledge of such to, for, prosecutors and manuals structions represented improper, but other defendants picture only after an that enter investi an interest in by other defense counsel have completed. request gation has been government can equal treatment. documents, granted, if would not reveal escape claus- phrase provide its directives to protected by records” “investigatory Ex permit judgment es that exercises present any specific emption guidelines. depart general prosecution from process the law enforcement harms to amended, 2 is requirement Exemption Exemption The core was intended to my view avoid.8 predominant internality, and claim, inappli- Hearings tion 5 he relied on the manifest

7. Federal Law Part I: Public Records al., Foreign Opera- cability Exemption stating (JA 54): H.R. on et before the specific tions and Government Information Subcommit- harms to law enforce- “[N]one tee of the object House Committee Government process, which is the ment of that (March Operations, Cong., 1st Sess. 29-30 avoid, Thus, would amendment occur. there 30-April 1965). impede is no claim here that disclosure would investigation, would interfere with enforce- substance, presen- persuaded In I am proceedings, would disclose ment confidential by plaintiffs tation on 7 made coun- sources, personal privacy, would invade argu- in the sel district court. In the course of rejection Exemp- government’s MacKINNON, Judge, dissenting: completely Circuit useless. The recognized intent Congress (a)(2) excluding prosecution 552(a)(2)(C) In its construction of compelled instructions Wilkey by Judge holds majority opinion would be completely obliterated merely instructions issued prosecuting including description of the record in a aid his Attorney to assist the United States request. Both subsections (a)(2) and (a)(3) from disclosure because of exempt ants are are disclosure provisions, and it is incongru expressed intent congressional ous to to Congress attribute an intent spe they constitute “instruc reports committee cifically exempt prosecution to personnel instructions prosecuting tions to Government “ under one subsection require and to and ‘law mat cases in court” enforcement their disclosure under the very and next ters’ . . .—both the Manual succeeding theory fall subsection. The descrip within construction in [that] Guidelines— Maj. dulged Op., p. by in majority tion of non-covered materials.” opinion is too U.S.App.D.C., 760 of 591 p. finely -- of spun and too to unreasonable over Yet, very next sentence the F.2d. in come the clearly expressed expressed intent prosecution instruc majority holds by both Houses as to the result the Con Maj. exempt tions are not from disclosure. gress sought bring to (a)(2). about by p. Op., p. -- of U.S.App.D.C., 760 clear legislative statements intent in the F.2d; pp. - of id. see Reports Committee of both Houses indicate pp. 759-761 of 591 F.2d. U.S.App.D.C., that Congress “prosecution intended . majority In so violate clear ruling instructions” completely exempt to be from Congress intent of and the fundamental disclosure and this should not made be use that a statutory interpretation spe rule of less construction. provision provision general cific overrides a (a)(1) Subsection requires § same From such addressed to the concern. published certain material be in the Federal respectfully construction I dissent. Register; (a)(2) requires “administrative staff manuals and instructions to staff that 552(a)(2) Specific and the Intent Section public” affect a member of the (emphasis Congress. added) to be public made available for in- indulged The construction in the ma spection copying; (a)(3) provides and and jority opinion by restricting (a)(2) reached is that, respect except with to records made prosecution to exempting only instructions (a)(1) available (a)(2), agen- under and each indexing from and and then go disclosure cy “upon request” any which “reasonably exemption on to hold that such records,” complies describes such and with meaningless that all such is and time, agency to place, rules as fees and (a)(3)1 upon under records are obtainable a make procedures, shall the records promptly . mere for records . . reaso “request person. available any describing nably Since record them].” described, In reasonably enacting provisions these usually is can it, Report in for Committee request specifically such construction of stated that it intended the statute is unreasonable and unrealistic. its reference to “administrative (a)(2) for staff prose 552(a)(2)(C)2 manuals” in admitted exempt cution instructions would thus be rendered prosecution instructions: investigative (if techniques, any), procedures followed, fees disclose would en- to be danger promptly life or limb of an officer the U.S.” shall make the records available any person. 552(a)(3) provides: 1. 5 U.S.C. § 552(a)(2)(C) provides part: 2. 5 U.S.C. § respect Except with to the records made (a) agency Each shall make available to the (2) paragraphs (1) available under of this public information as follows: ... subsection, agency, any request upon each (2) agency, pub- Each in accordance with (A) reasonably which for records describes rules, public lished shall make available (B) such records and is made accordance inspection copying— time, place, published stating rules need not be in Prosecution instructions manuals the staff limitation given their in which can be public dexed before affecting the instructions public within the office of the advisory use available tended made must be to administrative pertain Attorney. point The entire those United States law enforcement than to rather matters is thus shown majority respect in this confiden- the traditional protects matters and with meaningless, unreasonable to be government of instructions nature tial This com any practical foundation. out law in violations prosecuting personnel majori the remainder of the pletely refutes examina- court, permitting while undermining the by decisively ty opinion ac- administrative the basis tion of upon act which it rests construction of the tion. Maj. Op., p. of 192 U.S. its decision. Cong., 1st Sess. S.Rep.No.813, of 591 F.2d. in p. 763 Since App.D.C., 1966, p. & Admin.News Cong. U.S.Code compulsory when an dexing nothing added). There (emphasis or cite the record material rely, seeks to use to in expressed so intent congressional against party,”4 to inter precedent “as it to be intended the Senate dicate though Congress intend the statute as pret the disclosure exempting restricted prosecutorial the instant only exempt ed to indexing and dis solely from such records indexing and not eventu instructions provisions of not from those and closure an rely all disclosure would ally from In this only disclosure. require act because the statute unjustified construction the statute. majority misread respect indexing by before require does not use Maj. Op., pp. of 192 U.S. prosecuto staff to aid in the exercise of its In of 591 F.2d. pp. 760-761 App.D.C., only rial intended use of discretion—the instructions, etc., orders, opinions, dexing of such instructions. exempting such for requirement not a is significance It is also of utmost to the only required but is records from we are confronted to note issue with which thereon, use, or rely seeks to agency if the by its Committee indicated Senate party oth against precedent as cite them specifi- that the statute was Report, supra, 552(a)(2)(C).3 agency, per than an er such exclusion from dis- cally providing for sought is for or use such reliance no Since such instructions because of the closure of claim of the instructions prosecution [prosecu- confidential nature of “traditional difference be is some majority that there Thereby the re- instructions.” Senate (a)(2) (a)(3) upon tion] the effect tween attorney-client law to the common in ferred any support without such instructions Congress indicated that it in- history. privilege and legislative or the statute by unless it ments thereto determines order (C) and in- staff manuals administrative Register published a member of in the Federal to staff that affect structions promptly unnecessary public-, publication the materials and im- unless would be copies published agency offered for sale. practicable, shall in which case added). (Emphasis infra. copies See n. provide of such index on nonetheless request not to exceed the direct cost at a cost part: 552(a)(2)(C) provides in 3. 5 U.S.C. § order, opinion, duplication. A final state- (a) agency make available shall Each interpretation, policy, or staff manu- ment of public . . as follows: . information that affects a member of the al or instruction pub- agency, in accordance with Each on, used, public may or cited as be relied rules, public shall make available lished by against party precedent agency copying— other inspection . agency agency if— (C) shall also main- than an . Each . inspection public (i) made make available it has been indexed and either tain and providing copying identi- published provided indexes current this available or any fying as to for the information paragraph; or issued, adopted, promulgated after or matter timely (ii) party actual and notice has 4, 1967, paragraph required July of the terms thereof. published. Each made available or added). (Emphasis quarterly publish, promptly agency shall Id. (by frequently, sale and distribute more otherwise) supple- copies index or of each government agency tended a to be con- ments of policy, interpretations, staff sidered as a client under the Freedom of manuals, and instructions that affect Act. Information member of the public. This material Report states that product the end of Federal administra- working papers 5 “would include the tion. It has the force and effect of law in attorney agency and documents cases, yet most present under the statute attorney- which would come within the these Federal decisions have been applied private par if privilege client kept secret from the pub- members of the 2; ties,” S.Rep. p. No. and the case lic affected the decisions. clearly attorney’s law makes the work- As the Federal Government has ex- product Taylor, rule of Hickman v. tended its activities to solve the Nation’s 385, 91 L.Ed. U.S. 495 S.Ct. [67 451] expanding problems particularly —and applicable Government attor years the 20 since the Administrative neys litigation. Kaiser Aluminum & Procedure Act was established —the bu- States, Corp. Chemical v. United reaucracy developed has its own form of 947, 141 50; Ct.Cl., F.Supp., at United case law. This law is embodied in thou- Anderson, (Colo. 34 F.R.D. 518 States orders, sands of opinions, statements, and 1963); Corp. Thill v. New York Securities instructions issued by agen- hundreds of (E.D.Wis. Exchange, 57 F.R.D. 133 Stock cies. This is the material which would be Co., 1972); Mfg. J. H. Rutter Rex Inc. v. made (b) available under subsection of S. NLRB, (CA5), denied, 473 F.2d 223 cert. However, under 1160 an agency S. 38 L.Ed.2d U.S. [94 55] required not be to make available public inspection copying any ad- Sears, Co., v. NLRB Roebuck & 421 U.S. visory interpretation on a specific set of 132, 154, 1504, 1518, 95 44 L.Ed.2d 29 S.Ct. facts which requested by and addressed added). (1975) (emphasis In Mead Data particular to a person, provided that such Force, v. Dept. Cent. Inc. U.S. of Air 184 interpretation is not cited or relied upon 350, (1977), 566 242 we by any officer employee of the agency recognized also precedent as a disposition of other Air Force as Government Furthermore, cases. an agency may not privilege private entitled to the same as a required to make por- available those client for its “confidential communications tions of its staff manuals and instructions attorney.” In his to dissent Mead [its] which guidelines set forth criteria or Data, Judge recognized also McGowan the staff in auditing inspection proce- privilege applied and would have it more dures, or in the handling selection or broadly majority. than the 184 U.S.App. cases, operational tactics, such as allowa- 371-372, 566 F.2d at 263-264. D.C. tolerances, ble defense, or criteria for Report, The House Committee in addition prosecution, or settlement of cases. Senate, to that of the also included a state- H.R.Rep.No.1497, Cong., 2d Sess. 7-8 indicating exempt ment an intent to from Cong. 1966, U.S.Code & Admin.News “prosecution those p. (emphasis added). The statement manuals and staff instructions which set italicized above is a continuation of criteria or [“prosecution”] guidelines forth reference in the prior . sentence all provi- for the staff . . .” And the House to Report Thus, sions “under further indicated that it intended S. 1160.” the language interpretation apply Report such all of S. 1160 indicates a clear legislative (a)(2) solely and not to be confined as the intent exempt from disclosure “under S. majority opinion contends: e., act, 1160”—i. just (a)(2)— entire those “staff manuals opinions

In addition to the and instructions orders and set forth required guidelines to be made criteria or present for the staff law, (b) subsection in . of S. 1160 would re- the selection or handling of quire agencies to make available state- cases ... or criteria for general “However inclusive be the spe- This of cases.” ...

prosecution exempts statute, the sub- language of a it ‘will not be held provision completely cific instructions. ject prosecution apply specifically to a matter dealt part with in another of the same enact- Report refers to when the And Specific prevail . . terms ment. nature confidential “traditional general over the in the same or another thereby indi [prosecution] instructions” might which otherwise be control- priv law statute recognizing it is the common cates material, ling.’ Ginsberg Popkin, an addi & it indicates Sons ilege of such 204, 322, material should be tional intent that such S.Ct. 76 L.Ed. U.S. [52 704]” requirements exempted States, from all disclosure MacEvoy Co. United 322 U.S. height be the of the FOIA. It would 890, 88 L.Ed. S.Ct. [64 1163.] recognition absurdity to construe such 228-29, at 77 S.Ct. at 791. This U.S. prose nature of the traditional confidential recently Simpson principle was reiterated being limited cution instructions as States, v. United 435 U.S. 98 S.Ct. which is not re indexing, L.Ed.2d 70 where Justice Brennan law. That would except for secret quired remarked: of the traditional recognition be no at all Finally, supported by our result is such instruction confidential nature principle gives precedence to the the traditional attor grounded which is specific terms of the more statute where relationship that exists between ney-client general specific statute and a statute See, prosecutors. the Government and concern, speak to the same even if the p. --- of U.S.App.D.C., pp. at 786-787 general provision later. was enacted Thus, according to the supra. of 591 F.2d Rodriquez, Preiser v. 411 U.S. 489- Houses, specif expressed intent both 36 L.Ed.2d [93 439] exemption from disclosure extends ic Sands, Sutherland, 2A Statutory Cf. C. (a)(3), including (a)(2) and entire Act (4th 1973). Construction 51.05 ed. (b). Maj. last of subsection Cf. sentence - of - U.S.App.D.C., p. at p.,Op. 98 S.Ct. at 914. U.S. 591 F.2d. respect With to this conflict in the FOIA Professor Davis stated: Conflicting Spe- 2. The Interpretation (a)(2) specific intent is more than [T]he Statutory Provisions. cific General general (a)(3), the broad and intent of interpretation the above In addition to interpretation and the usual canon of is specific expressed by intent upon based specific prevail should over the recognizing the Congress both Houses general provisions when the two are in- nature of such ma- traditional confidential consistent. excluding prosecution instruc- terial Davis, Law in K.C. Administrative the Sev “under 1160” tions from all disclosure S. 5 (1976). The foregoing principle enties 57 is Act], interpretation is also re- such [the firmly Kepner v. established. United statutory that rule of construc- quired States, 100, 797, 195 24 49 U.S. S.Ct. L.Ed. requires specific exemption tion which 114 set it forth as follows: general (a)(2) subsequent control principle It is a well-settled of construc- (a)(3) might with which it con- provision of specific terms covering giv- tion that stated in Supreme flict. As the Court subject-matter prevail gener- en will over Corp., v. Transmirra 353 Fourco Glass Co. 222, 787, (1957): language 77 1 L.Ed.2d 786 al of the same or another stat- S.Ct. U.S. acknowledge that con- last conclusion should not be Davis does considered to Professor case, trary plausibility, apply appears arguments have and with- to the facts of this as it do matter, conclusively specific resolving states that under the statements of intent out analysis Congress respect “prosecution generally instruc- that “when the technical far, required by (a)(2), policy thinking pushed is not the court’s tions” expression specific case that issue before the court of intent about analysis. play key properly role.” Id. This should end the sometimes

789 might prove exempted prosecution ute which otherwise control- instructions —which ling. all admit —and that such exemption just as much “specifically stated in 125, 24 at 803. 195 U.S. S.Ct. United 552],” section (C), see subsection Salen, 237, 249, [§ v. 235 35 States U.S. S.Ct. of the nine exemptions set forth 51, (1914); in subsec- 59 L.Ed. 210 United States v. Stever, 167, 51, (b). tion Congress 222 intent of U.S. 32 S.Ct. 56 L.Ed. with re- (1911); States, spect Kepner (C) 145 v. United 195 to both subsection and the nine 100, 797, (1904); 24 49 L.Ed. 114 exemptions U.S. S.Ct. is to be determined from the Co., Manager, FTC v. Retail Credit Miami language of the statute and from the Com- Office, 271, U.S.App.D.C. Branch 169 276- Reports. appears mittee It that one of the 988, 77, (1975); 515 F.2d 993-94 Maiatico v. basic defects in the majority opinion is its States, 295, United 112 300- inability recognize that both the House 880, 01, (1962); 302 F.2d 885-86 American Reports and Senate also indicate the con- FCC, Telephone Telegraph Co. v. 487 gressional intent of the statutory language. 864, (2d 1973); F.2d 877 n.26 Cir. Monte 3. The Lodge Majority’s

Vista v. Guardian Life Treatment Ins. Co. of of the Ex- America, 126, (9th 1967), emptions 384 F.2d 129 Interjection Cir. and its of Subsec- denied, 950, 1041, cert. (a)(3) 390 U.S. 88 S.Ct. 19 of section 552. (1968); Sdrales, 1142 L.Ed.2d Cuevas v. 344 the legislative Since intent of both Hous- 1019, (10th 1965), 1020-21 Cir. cert. respect (a)(2), es with as the majority denied, 1014, 625, 382 U.S. S.Ct. admits, opinion plainly exempts “prosecut- (1966); L.Ed.2d 528 United ex rel. States instructions,” . . it is not neces- FPC, Chapman (4th 191 F.2d 796 Cir. sary to find an additional exemption from 153, 1951), 609, aff’d 345 U.S. 73 S.Ct. (b)(2) disclosure in dealing with “internal (1953); L.Ed. 918 Buffum v. Chase Nat. personnel practices rules and of an agency”, York, 58, City Bank of of New (b)(5) or in exempting certain “inter-agency (7th 1951), denied, 944, Cir. cert. U.S. or intra-agency memorandums”, or (b)(7) 558, (1952). 96 L.Ed. 702 S.Ct. Cf. United which exempts certain “investigatory rec- Powell, States U.S. S.Ct. ords compiled for law pur- enforcement (1975); 46 L.Ed.2d 228 United States v. However, poses.” it is perfectly clear that 680, 682-83, Alpers, 338 U.S. 70 S.Ct. when the Senate Report Committee based (1950); 94 L.Ed. 457 Gooch v. United of “prosecuting ... in- States, U.S. structions” upon their “traditional confiden- L.Ed. 522 It therefore clearly ap- ” tial nature and indicated that the exemp- pears specific expressed from the intent tion, based, so just extended (a)(2) Reports applicable the Committee and the act, but to the (b)(5) entire exemp- principles statutory interpretation as rec- tion when it refers to “intra-agency memo- ognized by Supreme Court that Con- randums . . . which would not be gress recognized by must be the foregoing available law party to a other than an specific expressions of intent to have pur- agency in litigation with agency” an em- posely exempt prosecution intended to in- bodies the common law attorney-client priv- all structions from disclosure and that it did ilege prosecutorial instructions which “legislative not commit doing error” in so to the Senate Report encompassed. p. See peculiar regime.” arrive at “a somewhat — of 192 U.S.App.D.C., p. 786 of 591 — J., Wilkey, Opinion p. Cf. at of 192 F.2d, supra.

U.S.App.D.C., p. at 762 of 591 F.2d. Ac- tually “legislative (b)(2) (b)(5) the novel claim of discussion of error” in Gins- burg, imaginative is an creation of the writer that Feldman & Bress v. Federal Energy Administration, —-, approach was induced 591 applied a interpretation wooden (1978), entire statute. applicable is also here to a approach impossible Such finds it recog- considerable extent. But since the instant Congress by (a)(2)(C) nize that specifically documents are completely exempted by Opinion at -- of 552(a)(2)(C) upon exemptions U.S.App.D.C., reliance at § necessary their (B)(2) and is not majority opinion of 591 F.2d. The repeated. interpretation need not be further states: —......... id., at ---, of 192 U.S. agency To meet burden the must [its] 723-725, App.D.C., at 732-734 of 591 identify specific statutory exemption (b)(7), exemption As to its dis F.2d. upon relied and demonstrate that the ex- Ginsburg, id. at - of cussion emption applies to the ques- documents in F.2d, at 731-732 of 591 U.S.App.D.C., showing tion. This must be made at the here because of the differ applicable is not agency district court level. An cannot re in the nature of the documents ence prevail on an it has not quested. raised either at the level or in the Ginsburg respect With district court and that it has invoked for as an additional basis rely did not thereon appellate the first time in the court. . disclosure, instead ad- requiring for not but appeal are to be confined to [I]ssues (b)(7) merely exemplary as dressed duly those presented to the trial court. general scheme and intent of the Act. See -, Maj. Op., pp. at U.S.App. - of id., accompanying at note 27 and text. D.C., p. at 779 of 591 F.2d. (b)(7) may stronger have a influence While majority opinion then engages in an extra significance here it also has much the same neous discussion of situations where an is occupied respect it to the Gins- sue is raised for the appeal. first time on (b)(7)(E) burg plainly records. Subsection complete This is almost dicta but it up ends protect “investigative an intent to indicates by admitting, reluctantly, somewhat in law enforce- techniques procedures” appellate courts have some limited discre investigatory being records. That ment particularly tion because of 28 U.S.C. hardly intent it would be sensible to attri- 2106.6 contradictory Congress intent bute my In opinion the rule is not as restric protect procedures investigatory such tive or majority limited as the general opinion documents and not in more instruc- To my states. mind on an prosecutors. provision appeal tions to While this in a civil directly case from exempting prosecu- not aimed a district court there is a con manuals, except instructions or as the siderable discretion appellate vested in the might prosecuting part instructions be a court which vary dependent upon the records, investigatory certainly is another issue, nature of the the nature of the new instance where the Senate and the House authority and to a considerable upon extent agreed by specific language that both Hous- the certainty to which the issue may be exempt law es intended enforcement rec- resolved. If requires the issue presen investigative procedures. ords that disclose tation of facts which were not developed which specify Prosecutorial instructions of- below, or give ground seeks to a new prose- fenses that should and should not be relief unrelated to the argument in the trial significant “law part cuted constitute court or action, to raise a new cause of investigative enforcement . . . McMillan, was the case in Doe v. 148 U.S. procedures.” 280, 287, n.10, App.D.C. n.10 however, reversed on other majority opinion, grounds, refuses (b)(7) because it is asserted that the U.S. discuss L.Ed.2d 912 (1973); timely Depart- Ginsburg, supra, “claim was not made see at note Justice], consequently ment there is involves an proceeding administrative [of J., Wilkey, no need to consider its merits.” where the must explicate review, provides: may before it 6. 28 U.S.C. 2106 § remand the entry appropri- cause and direct the of such Supreme Court or other court of decree, order, judgment, require ate or affirm, appellate jurisdiction may modify, va- proceedings may such further to be had as be cate, any judgment, set aside or reverse de- just under the circumstances. cree, lawfully brought or order of a court

791 action, the agency upon denied it a single ground for its see Securities grounds Chenery Exchange Corp., v. Commission it to plain considered be and determi- 88, 454, 80, L.Ed. 626 63 S.Ct. 87 318 U.S. quantity native. With tremendous ability appellate then the of an court (1943), are developing FOIA cases that I could not rule necessarily restricted. But the is not is find a to file a completely failure exhaus- 2106, recog- supra, and 28 U.S.C § absolute tive to be response unreasonable. There nizes, Realizing that it is well-settled this. certainly great so economy is a of time in court must correct decision in a lower that a acting requiring and not the statute though even court affirmed lower be and the decisions be fine combed to discover upon wrong ground gave a relied every and assert conceivable au- supporting 88, reason, Chenery, supra, at 63 wrong thority. Doubtlessly single ground is 454; States, Ryerson v. 312 United S.Ct. great many determinative of a requests. 405, 408, 656, 61 L.Ed. 917 S.Ct. 85 U.S. situation, The same and somewhat the same Gowran, 238, (1941); Helvering v. 302 U.S. justification, develops to a degree lesser 154, (1937), it is 245, 82 L.Ed. 224 58 S.Ct. court, before the district particularly when appropriate parties may cases clear that it agency feels has asserted conclusive affirming . . reasons for “urge legal authority for its action. Agency may the District which judgment of Court may then no necessity asserting see upon by been the District have relied not every However, authority. cumulative Shultz, Bankers California Ass’n Court.” when its of decision basis is be found to 1494, 21, 71, 1522, 94 39 S.Ct. 416 U.S. insufficient an appeal is to necessary (1974). Indeed, can even 812 courts L.Ed.2d this court then feels it is necessary prevent grounds new issues or consider marshall all its authority. That is how under certain circumstances. Hor- injustice these arise situations and I feel that 556-57, 552, Helvering, 312 61 mel v. U.S. should be dealt with realistically and where 719, Morgan (1941); 85 L.Ed. 1037 S.Ct. ground the new is raised because of a new 223-24, 222, Garris, U.S.App.D.C. decision, and same can be considered on (1962) (en banc). 180-81 F.2d existing factual record made before the dis- Thus, when a matter first presented court, trict I see no necessity, barring some support is in the nature of additional appeal motivating consideration, other to remand resulting point from further research for the case or to refuse legal to consider the raised, already majority or results as the authority so raised. In this case the Ex- develop “because of an interim recognizes emption 7 issue was raised because of our doctrine,” Maj. applicable legal Op. ment in panel in Ginsburg, decision Feldman & U.S.App.D.C., p. 780 at p. -- of Administration, Bress v. Energy Federal (which just is with re this case -, 591 F.2d 717 7) in con Exemption more latitude spect (1978), is today by affirmed en banc sidering ground generally recog the new an equally divided court. recognizing to exist. Not this flexi nized However, where a new cause of action is ignoring would amount to the author bility sought to be raised for the first time on appellate courts U.S.C. ity given appeal, appellants attempted as before our “require such further proceedings McMillan, court in Doe v. 148 U.S.App.D.C. just as be circum to be had under the n.10, & 1308 & n.10 I dissent dec majority’s stances.” from the (1972), grounds, other rev’d on 412 U.S. subject the law is as laration on the L.Ed.2d 912 prohibitory positively is indicated appellate obviously court should refuse Maj. foregoing opinion, statement opinion consider it. Our in Doe does Op., pp. ----- of U.S.App.D.C., support the contention for which it is cited of 591 F.2d. pp. 779-780 majority. here, happened pre- What and it must cases, my It is thus view that happen many FOIA since the sumed Govern- application was first made ment did raise original that when in its brief, Br., 15-16, argument pp. expanded and its before this court Govt. en banc. brief, Nevertheless, supplemental in its Govt. the next line of the majority reliance Br., 3-5, opinion and no new factual for the time Supp. pp. interjected first a new findings necessary theory to our consideration for disclosure based on another sub- effect, act, majority opinion saying: of its that the section of the majority’s should consider it since However, these documents are releasable applicability view of the case the (a)(3), paragraph they under unless fall exemptions was determinative. within at least one of the exemp- nine (b). tions set forth in subsection However, regardless majority of what the Maj. my Op., p.--of U.S.App.D.C. p. exemption, does the 7th view at majority opinion excessively (emphasis limits in original). 763 of 591 F.2d appeals upon (a)(3) the discretion that the courts of and And it is the basis of subsection Supreme may with re- the majority Court exercise bases its decision that the spect considering question authorities that are records in are diselosable notwith- delayed presentation standing but still deter- conclusion that are ex- (a)(2), controversy empted by mine a or furnish basis for or previ- subsection my ously upon influence a decision. In view the ma- relied or discussed in the entire Thus, jority respect dog- is far too case. opinion apart in this from its erroneous con- (a)(3), matic and in that excess of zeal and certain- struction of pointed out above, ty opinion actually majority of its own it has blinded also violates its own pronouncement that it that in very itself so cannot see this in considering relying and very upon statute, case it has committed the vice it railes a section of the and a theory construction, against. for its previ- had never ously been by anyone anywhere. raised If — complaint here in Jordan is based belatedly construction so advanced were solely upon 552(a)(2)(B) the claim that § sound, this contradiction of its announced (C) plaintiff to the he and entitle relief principle preclude which would considera- requests. App. argued 6. Jordan his case exemption tion of 7 might justi- have some App. that basis. 52-58. And the fication, but, violating as it does sound rules Judgment of the District Order Court statutory construction it is in error in solely upon 552(a)(2)(B) (C). is based respect contrary as well as to the ma- Furthermore, in App. 76-77. this court the jority’s extravagant dicta which would un- majority agree that Jordan and the district reasonably appellate restrict consideration claiming in error in holding court were strictly to matters authority raised at (a)(2) required requested access to the hearing stage. Actually, consideration by records. This error is articulated 7 which was first mentioned majority opinion as follows: by appellants in their initial brief would be sum, then, In we hold that the Manual a far lesser violation of the limiting rule sought by appellee Jordan Guidelines appellee consideration as by announced para- not releasable under this case are majority majority’s interjection than the graph (a)(2) the Act. (a)(3) subsection appeared which never Maj. Op., p. p. of 192 this majority case until the opinion was (emphasis original). 763 of 591 circulated. Then, very in the next sentence the ma- 4. The Sunshine Act. jority time in proceeded to insert for first proceeding this ease a basis for decision that was never Before with the discussion of pleadings, subject never discussed by referred to it should be noted that inter- party argument jecting argument either in oral before the Act Sunshine the ma- court, jority never referred to or is interjecting argument district relied in its court, case, judgment opinion of the district for the first time in upon con- trary never referred to in briefs to this court to the earlier condemnation of such party procedure. either in oral and never mentioned

793 respect House majority Report, The claim in this that of the Committee in ex of the its provision pressing respect that an isolated Govern intent with to Exemp Act, 94-409, 90 P.L. 2 expand in the Sunshine did not exemption ment that but 13, 1976) (Sept. supports its as generally might Stat. restricted what have been (b)(2) of of subsection construction held exempted by “practices serted to be of an Maj. Op. Freedom of Act. Information If agency.” one were look only to to the pp, at U.S.App.D.C, pp. --- of Report as the Committee majority claim is This F.2d. urge, “practices of 591 of an agency” might 770-771 have Ginsburg, supra, by opinion refuted including been construed as “matters of U.S.App.D.C., at pp. ---of management.” internal Ginsburg, supra, basic pp. 591 F.2d. The at 734-735 of at --- of U.S.App.D.C, at 726 foregoing by opinion, committed error Thus, of 591 F.2d. the House Commit sup its that Sunshine Act assertion tee Report actually a closed potentially construction, is to its that it fails ports large loophole when it stated that its recognize different provision, Exemption intent in exempt 2 was to from Act, 552b(c)(7) Sunshine accom of the § rules, “operating guidelines, disclosure practically exemption the same plishes procedure government manuals for in ” through House did its Committee Re vestigators or . examiners . . H.R. respect Exemption with 2 of port Rep.No.1497, 89th Cong, 2d Sess. 10 U.S. language specific in the Sun FOIA. Cong. Code & p. Admin.News of in Act that tracks statement shine 9, 1966) (footnote (May omitted). of the Committee with Report tent House It is also fatal to the argument advanced pro 2 of respect Exemption the FOIA by majority respect (b)(2) with need not— vides the Sunshine Act that substantially the (7) investigatory disclose records com- disclosure, same as the or piled purposes, for law enforcement asserts, expressed Government been had information if written would be which Reports earlier in the Committee on the records, to the contained in such but FOIA both by houses. The Senate Report extent rec- production of such had stated: (A) would ords or information interfere The limitation of the staff manuals and proceedings, . enforcement public affecting instructions 552b(c)(7). in 5 U.S.C. Written or oral § public must be made available investigators part are a structions to pertain those which to administrative “investigatory and it is record” too clear matters rather than lawto enforcement argument prosecutorial protects matters the traditional confiden- announcing that some viola instructions tial nature of instructions Government might might prosecuted tions and others personnel prosecuting violations of law in certainly interfere with enforce court, while permitting examina- These instructions are proceedings. ment tion of the basis for administrative ac- (7) exempted by Exemption thus tion. as Act the same Sunshine S.Rep.No.813, 1st Cong, Sess. case of the FOIA. But this - (1965) (emphasis (See added). p. also not involve a Act claim. The does Sunshine U.S.App.D.C, pp. cat 786-787 of prosecution instructions also fall in the F.2d, supra.) Report . “guidelines House had egory Govern ex- pressed that are a similar investigators” exempted ment intent: 552(b)(2) Re explained the House Furthermore, agency may not be re- port Ginsburg, to the FOIA. See at - of to make quired portions available those U.S.App.D.C., 723 of 591 F.2d. manuals staff and instructions which gross majority guidelines

It is also a mistake for the set forth criteria or for the opinion U.S.App.D.C., auditing at --- of staff in inspection procedures, at 767-768 of 591 fact overlook the handling cases, or in the selection or tactics, placed tion were statutory language. allowable tol- operational

such as defense, erances, prosecu- possible criteria for This was the construction that had tion, of cases. crept or settlement into the bill when it reached the House. Cong., 2d Sess. 7-8 H.R.Rep.No.1497, Cong. & Admin.News U.S.Code Thus, because the Committee Re Senate added). (See also pp. (emphasis 2424-2425 port “practices agency” left the of an part pp. U.S.App.D.C., pp. --- of Exemption open very to a broad F.2d, supra.) Jordan of 591 787-788 interpretation, admittedly which none of expressions legis these of cannot overcome intended, the authors ever the House Com Try majority may the to lative intent. as Report mittee went severely ahead and and houses, inject dispute between the two some specifically limited the breadth of the Ex the deficiency expression leg or some of rules, emption practically operating intent, quotations

islative the two above guidelines and investigatory manuals. It exempting indicate their concurrence in also further restricted Exemption by guidelines in law prosecution enforcement providing specific “matters of internal matters. management” “employee such as relations working and conditions Majori- and routine admin Unsupported Charge by 5. The procedures” istrative must be disclosed. ty Opinion “Chicanery” by of the House majority opinion mistakenly Foreign Committee on Interstate views this broadening House action as the Exemption. Commerce. In reality Report the House big closed a majority opinion charges the House loophole as is shown at pages --- of Foreign on Interstate and Com- Committee U.S.App.D.C., pages at 792-793 of (which spearheaded by Repre- was merce F.2d, supra. respect investiga With Moss) “chicanery” in sentative with at- tory nothing manuals it did more than state inject improper congressional tempting to precise intent elsewhere stated through the intent into the Senate bill Reports Committee in both the Senate and Report. Time space House Committee respect House with to administrative staff permit charge do not refutation of that manuals, e., i. to exempt law enforcement except insofar as it be relevant to this matters and staff manuals and instructions e., Exemption case —i. guidelines set forth criteria or for the the bill reached the House from When handling staff in the of cases such as crite Senate, Report Committee Senate prosecution ria for (Ginsburg, supra cases respect Exemption only gave with pp. --- of 192 U.S.App.D.C., at types “[ejxamples” few of “rules” it p. F.2d). And as exempting from disclosure. It made no management” “matters of internal there is an “practices agency.” reference to the disagreement no that both Houses intended Thus, explanation if no further committee repeal that existing statutory exemption. given “practices Exemption were Thus, Report the House did a more work agency” open of an would be wide to be job manlike in setting forth the admitted given meaning might their normal and that intent of both Exemption Houses on very held to constitute a broad exemp- As to the charge “chicanery” even to cover might tion. It be deemed respect to Exemption open 2 the proceed- management” “matters of internal ings Congress completely However, belie the accu- previously provided. Act one of First, Congressman Moss, sation. prin- was to principal purposes bill cipal House author of the bill and the ac- repeal management” exemp- the “internal knowledged father of the Freedom tion which was a feature of the then exist- of Infor- Act, publicly mation stated on the agency” very law. “Practices of would first day 30, 1965, of the House investigatory practices many hearings, also cover March practices all would be the intent of practices, other 2 was to ex- rules, some limita- exempt empt operating guidelines from disclosure unless and certain Second, Congress- procedure. manuals of None of of 591 F.2d. these witnesses day same were publicly man Moss declared the Senators and their statements do not “hope way doing expressions that he to see a constitute congressional in- job [exempting examiners’ tent. The statements referred to are also manuals] exempting prac- greatly internal without rules weakened as to possible weight by the Congressman tices.” In the same vein Moss fact that were made May added, perfectly willing to work at and 21 in “we are 1965 before the Senate Com- 30, 1965, mittee Hearings, pp. Report it.” House March was filed on October Third, hearings They did not thus 29-30. have little or no force. Their 14th, May later, weeks begin until some six comments are entitled to weight no whatso- pro- House ever as public expressions legislative and all the Committee of intent of the Similarly, available to Senate. ceedings were it. Senate those comments in Hearings the Report until Octo- House Committee was not filed were “off the top of heads” of participants, certain ber [the] House, not members of the similarly Thus, can contend that some- person no congressional reflective of intent. with being respect was done thing deceitful (b) majority opinion cites 2 when the House subse- certain Exemption passages of Air au- Force principal what the quently precisely did Rose, U.S, 352, publicly thor stated intend- bill L.Ed.2d but the significant be fea- ed Nor can it contended to “work at.” ture of opinion is that it open leaves ample oppor- that the did not have Senate for future decision fate of a claim under tunity position. of the House to be informed the FOIA “where disclosure may risk cir- Fourth, charge Ginsburg, made in agency regulation.” cumvention of - supra (see at of 192 Dissent U.S. at U.S. 96 S.Ct. at 1603. While the F.2d) App.D.C., 746 of at there prosecution present instructions here do not was chican some sinister “last minute the same case clear-cut as is presented by by members of House ery interested Ginsburg, the facts here are sufficiently as the full just . committee similar to conclude that the question here is out the report House was about to bill. open. also concurring opinion Judge ” (emphasis added), as said . insofar Leventhal. charge respect is with made (c) The majority opinion statement of the the fact that committee flawed -at U.S.App.D.C., at 775 of 591 usually prepared the final reports are near F.2d that the Manual nor the “[n]either passage. view of the stage of a bill’s In . Guidelines . . sought ap- [FOT] Moss Congressman statement pellee . . were . . . even pre- 30, 1965, made on March over months pared in anticipation general” of trials in Report before the House Committee patently seems to be incorrect. 9,May (H.Rep.No.1497, filed on Cong. Cong., 2d U.S.Code & Admin. (d) conclusion, Sess. In I my agreement state 1966, 2418), News it cannot be contended p. with the in Judge statement Leventhal’s report dealing that the portion opinion that: minute chi Exemption 2 constituted “last Exemption 2 applicable where the doc- canery.” ument consists internal instructions to government such investigators officials as Comments. Miscellaneous and bank examiners. In such a case dis- (a) opinion permit that sev- closure majority states circumvention of law, Senate, meaning substantial, eral witnesses told and there is no valid subcommittee, exemptions external community interest at expanded large [Leventhal, J., if it was desired in revelation. would have to - of 591 investigative U.S.App.D.C., of 192 at 783 “protect manuals.” See - Maj. U.S.App.D.C., at Op., at of 192 F.2d]. as to the relation join his I also statement Reports of the House and Senate

ship interpretation Brennan’s to Justice Id., U.S.App. pp. --- of

thereof. 591 F.2d. I do not

D.C., at 783-784 Exemp discussion of reach his

particularly in prosecution 2 because I find exempt from

structions (a)(2) as expressed intent of legislative

clear and the House. the Senate

by both view, my majority opinion

(e) In the issues here in a the statute and

casts attempts to fit the facts of mold and

static stereotype pattern into that is

this case character the rec-

contrary to both the provisions sought

ords here history applies legislative

statute majority opinion really What the

thereto. rely con- solely insensitive

does language of the stat-

struction the bare ignore all completely congressional

ute specifically expressed the commit-

intent recogni- reports except monetary for a

tee respect expressed of the intent immediately ne- (a)(2), opinion which the

gates. expressed respect- above I

To extent opinion.

fully majority dissent from joins

Judge foregoing opinion. Robb

ESQUIRE, INC. RINGER, Appellant.

Barbara A.

No. 76-1732. of Appeals,

United Court States Circuit.

District of Columbia 6,

Argued Dec. Aug.

Decided Sept.

As Amended

Case Details

Case Name: William Jordan v. United States Department of Justice

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 31, 1978

Citation: 591 F.2d 753

Docket Number: 77-1240

Court Abbreviation: D.C. Cir.