The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D.C., INC., Appellant,
William French SMITH, Attorney General of the United States, et al.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 21, 1983.
Decided Nov. 18, 1983.
In Freedom of Information Act suit, plaintiff church appealed grant of summary
judgment for the government by the United States District Court for the
District of Columbia, John Lewis Smith, Jr., J., 579 F.Supp. 1060. The
Court of Appeals held that exemption 2 was properly applied to deletion of
certain notations at top and bottom of subject document in view of finding that
public disclosure would risk circumvention of federal statutes and that
notations were deleted to protect sensitive administrative instructions for
handling of the document.
Exemption from disclosure requirements of Freedom of Information Act for
matters that relate solely to internal personnel rules and practices
encompasses filing and routing instructions; disavowing Allen v. CIA, 636
F.2d 1287. 5 U.S.C.A. s 552(b)(2).
For exemption from disclosure requirements of Freedom of Information Act for
matters relating solely to internal personnel rules and practices to be
applicable the subject material should fall within terms of the statutory
language and if the material relates to trivial administrative matters of no
genuine public interest, the exemption is automatic but if withholding would
frustrate legitimate public interest, the material should be released unless
the government can show that disclosure would risk circumvention of lawful
agency regulation. 5 U.S.C.A. s 552(b)(2).
Exemption from disclosure requirements of Freedom of Information Act for
materials relating solely to internal personnel rules and practices was
applicable to notations at top and bottom of legal attache's message requesting
information on founder of plaintiff church where district court found that
public disclosure would risk circumvention of federal statutes and plaintiff
did not dispute FBI's evidence of sensitivity as regards handling of the
document. 5 U.S.C.A. s 552(b)(2).
*828 **167 Appeal from the United States District Court for the District
of Columbia (D.C.Civil Action No. 75-01577).
Robert A. Seefried, Washington, D.C., for appellant.
Nathan Dodell, Asst. U.S. Atty., Washington, D.C., with whom Stanley S.
Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, Michael J. Ryan,
Asst. U.S. Attys., and Robert M. Burnham, Atty., F.B.I., were on the brief, for
Before EDWARDS and GINSBURG, Circuit Judges, and McGOWAN, Senior Circuit
Opinion for the Court PER CURIAM.
Plaintiff Founding Church of Scientology appeals the District Court's grant of
summary judgment upholding a refusal by the Federal Bureau of Investigation
(FBI) to disclose certain document portions under the Freedom of Information
Act (FOIA), 5 U.S.C. s 552 (1982). The issue on appeal is whether the FBI
properly invoked FOIA exemption 7(D) with respect to certain documents, and
exemption 2 with respect to another. Id. s 552(b)(2), (7)(D). For the
reasons set forth in its opinion, we affirm *829 **168 the District Court
with respect to those document portions withheld under exemption 7(D). [FN1]
Because of an asserted conflict in our precedents, however, we find it
necessary to address the proper scope of exemption 2 in greater detail. We
conclude by affirming the result reached by the District Court that exemption 2
does shield the remaining document portions from disclosure under FOIA.
FN1. In considering the document portions withheld under exemption 7(D),
the District Court properly adhered to the threshold test enunciated in
Pratt v. Webster, 673 F.2d 408, 413-21 (D.C.Cir.1982). Although the
government seeks affirmance of the District Court's decision, appellees'
counsel has urged us to reconsider certain aspects of our holding in
Pratt. We decline that invitation and reaffirm that Pratt is the law
of this circuit insofar as it interprets the threshold requirement of
The facts and procedural posture of this case are adequately summarized in the
District Court's opinion. Founding Church of Scientology of Washington,
D.C., Inc. v. Levi, 579 F.Supp. 1060, at 1061-62 (D.D.C.1982). We therefore
focus our attention on the one document whose disposition remains in doubt.
That document consists of an airgram transmitted by the American legal attache
in Havana, Cuba, to FBI headquarters on April 17, 1951. The airgram requests
information on Scientology founder L. Ronald Hubbard. The FBI disclosed to
plaintiff the full contents of the legal attache's message, but deleted certain
notations at the top and bottom of the page "to protect sensitive
administrative instructions for the handling of the document." See Joint
Appendix at 31, 176. The Bureau asserts FOIA exemption 2 as the basis for
nondisclosure, explaining that
the material withheld [is] of an administrative nature and totally unrelated
to the subject of plaintiff's request. The negligible value of such routine
internal administrative material to the plaintiff, when weighed against the
material's comparative sensitivity, called for a withholding of the material.
Id. at 20 (Affidavit of FBI Special Agent Martin Wood).
At oral argument, government counsel conceded that the type of material
deleted is indistinguishable from the filing and routing instructions that we
held unprotected under FOIA Exemption 2 in Allen v. CIA, 636 F.2d 1287,
1289-91 (D.C.Cir.1980). Nonetheless, counsel asserted that the Allen
holding conflicts with our earlier ruling in Lesar v. United States
Department of Justice, 636 F.2d 472, 485-86 (D.C.Cir.1980). In Lesar, we
held that exemption 2 protects from disclosure informant codes contained in FBI
documents. Furthermore, in footnote 77 of that opinion, we cited with approval
decisions from two other circuits in which administrative handling instructions
identical to those in Allen were found to fall within the scope of exemption
2. That footnote read:
See, e.g., Nix v. United States, 572 F.2d 998, 1005 (4th Cir.1978) (FBI
routing stamps, cover letters, and secretary initials within ambit of Exemption
2); Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir.1977) (FBI's
"administrative and mail routing stamps, and references to previous
communications utilized to maintain control of an investigation" within ambit
of Exemption 2).
Id. at 486 n. 77.
The conflict between our decisions in Allen and Lesar is apparent. The
government contends, however, that because Allen relied on Jordan v.
United States Department of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc), it
has effectively been overruled by our subsequent decision in Crooker v.
Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc).
 We agree. Exemption 2 provides that requested materials may be withheld
if they relate "solely to the internal personnel rules and practices of an
agency." 5 U.S.C. s 552(b)(2) (1982). In Jordan, we construed this
language narrowly to cover only minor employment-related matters such as pay,
pensions, vacations, hours of work, lunch hours, and parking. 591 F.2d at
763. Our holding in Allen relied on this limiting
construction *830 **169 to find that filing and routing instructions do
not fall within the ambit of exemption 2 because they do not relate to terms or
conditions of agency employment. 636 F.2d at 1289-91 (citing Jordan, 591
F.2d at 764). Subsequently in Crooker v. Bureau of Alcohol, Tobacco &
Firearms, however, we repudiated the narrow construction of exemption 2 that we
had adopted in Jordan, [FN2] and specifically suggested that the effect of
our ruling was to undercut that portion of the Allen decision that had
relied on Jordan. See 670 F.2d at 1069 n. 48, 1073. We hold therefore
that to the extent Allen conflicts with our subsequent en banc decision in
Crooker, it no longer represents the law of this circuit.
FN2. Our precise words were:
Although the majority opinion in Jordan stated that the language of
Exemption 2 "would seem to refer to those rules and practices that concern
relations among the employees of an agency," 591 F.2d at 763, and that
"personnel" "normally connote[s] matters relating to pay, pension,
vacations, hours of work, lunch hours, parking, etc.," id., we feel that
the meaning of Exemption 2 is not so limited.
Crooker, 670 F.2d at 1073. See also Jordan, 591 F.2d at 782
(Leventhal, J., concurring in result) ("Exemption 2 applies ... to the
internal personnel rules and to the internal practices of an agency."
 The only remaining difficulty arises from the implication in
Crooker that administrative handling instructions, although within the
broader reading of exemption 2, must be shown to threaten circumvention of
agency regulation upon disclosure before withholding can be approved under the
exemption. See id. at 1069 n. 48. [FN3] It is conceivable that this
implication may be overbroad in light of Supreme Court precedent and the
legislative history. [FN4] *831 **170 Nevertheless, we need not reach
that issue because the record in the present case satisfies even the more
rigorous standard applied in Crooker. In its opinion, the District Court
found that "public disclosure of the information would risk circumvention of
federal statutes." Founding Church of Scientology, 579 F.Supp. 1060 at
1065 (citation omitted). Plaintiff has not contested this finding on appeal,
nor indeed did it dispute the FBI's evidence of sensitivity during the summary
judgment proceedings in District Court. [FN5] See Brief for Appellant at 27-
29; Plaintiff's Memorandum in Reply to Defendants' Motion for Summary Judgment
at 11-12, reprinted in Joint Appendix at 138-39. We therefore have no
hesitation in affirming the District Court's judgment that exemption 2 protects
the administrative handling instructions at issue in this case from disclosure
FN3. The Crooker court noted the following language from the Allen
opinion: "It is even doubtful that the filing and routing instructions
would be exempt under the broader reading of the exemption given in the
House report [because disclosure] would not cause such 'circumvention of
agency regulations.' " Allen, 636 F.2d at 1290 n. 20 (quoting
Department of Air Force v. Rose, 425 U.S. 352, 364, 96 S.Ct. 1592, 1600,
48 L.Ed.2d 11 (1976)), cited in Crooker, 670 F.2d at 1069 n. 48.
FN4. After comparing the House and Senate reports, the Supreme Court in
Department of Air Force v. Rose suggested that a bifurcated analysis may
be called for in exemption 2 cases. The Court stated:
In sum, we think that, at least where the situation is not one where
disclosure may risk circumvention of agency regulation, Exemption 2 is not
applicable to matters subject to such a genuine and significant public
interest.... Rather, the general thrust of the exemption is simply to
relieve agencies of the burden of assembling and maintaining for public
inspection matter in which the public could not reasonably be expected to
have an interest.
425 U.S. at 369-70, 96 S.Ct. at 1603. The Court appeared to distinguish
between matters of genuine public interest and those involving trivial
administrative details, and implied that only the former would be subject
to a showing of possible regulatory circumvention upon disclosure before
falling under exemption 2. See also id. at 364, 96 S.Ct. at 1600.
Nowhere in the Court's opinion, the legislative history, or the statute's
language, however, is there any hint that trivial administrative details
must also satisfy this showing in order to fall within the exemption's
The language of Rose and a review of our own precedents suggests that
the following approach to exemption 2 cases may therefore be appropriate.
First, the material withheld should fall within the terms of the statutory
language as a personnel rule or internal practice of the agency. See
supra note 2 and accompanying text. Then, if the material relates to
trivial administrative matters of no genuine public interest, exemption
would be automatic under the statute. See, e.g., Nix, 572 F.2d at
1005; Maroscia, 569 F.2d at 1002. If withholding frustrates legitimate
public interest, however, the material should be released unless the
government can show that disclosure would risk circumvention of lawful
agency regulation. See Rose, 425 U.S. at 364, 369-70, 96 S.Ct. at 1600-
03. See also Jordan, 591 F.2d at 783 (Leventhal, J., concurring in
result), cited in Crooker, 670 F.2d at 1057.
This approach suggests that nondisclosure may have been appropriate in the
Allen case because the filing and routing instructions there were found
to be "trivial." 636 F.2d at 1290 n. 21. This is not to imply that all
administrative handling instructions are per se routine internal matters of
no genuine public interest. They certainly may be more significant in some
cases. Cf. generally 1 J. O'REILLY, FEDERAL INFORMATION DISCLOSURE P
12.04, at 12-11 (1983). Moreover, given the presumption favoring
disclosure expressed in FOIA, Rose, 425 U.S. at 360-62, 96 S.Ct. at
1598-99, a reasonably low threshold should be maintained for determining
when withheld administrative material relates to significant public
interests, see, e.g., id. at 367-69, 96 S.Ct. at 1602-03. See also
Jordan, 591 F.2d at 784 (Leventhal, J., concurring in result).
FN5. Cf. Franz Chem. Corp. v. Philadelphia Quartz Co., 594 F.2d 146,
150 (5th Cir.1979) ("Where the moving papers do not reveal the presence of
a factual controversy and the opposing party manifests silent assent
through inaction, the opposing party will not thereafter on appeal be heard
to belatedly assert as grounds for reversal that some factual disputes
implicit in the underlying arguments have yet to be resolved.").
It is so ordered.