OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




    The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D.C., INC., Plaintiff,
                                       v.
                        Edward LEVI, et al., Defendants.
                              Civ. A. No. 75-1577.
                          United States District Court,
                              District of Columbia.
                                  Nov. 4, 1982.
  On religious organization's Freedom of Information Act requests with regard to
 FBI records, the United States District Court for the District of Columbia,
 John Lewis Smith, Jr., J., originally granted FBI's motion for summary judgment
 on claims of exemption, but the Court of Appeals, 603 F.2d 945, reversed and
 remanded.  Following additional releases of material, the District Court again
 granted FBI's motion for summary judgment on remaining exemption issues, and
 the Court of Appeals again reversed and remanded.  On parties' cross motions
 for summary judgment on remand, the District Court, John Lewis Smith, Jr., J.,
 held that:  (1) affidavits of FBI agents were competent for purposes of
 establishing applicable exemptions and were entitled to be accorded substantial
 weight;  (2) those affidavits established that requested documents were
 investigatory record compiled for law enforcement purposes;  (3) FBI properly
 invoked "confidential source" exemption with respect to identities of state,
 local, and foreign law enforcement agencies and certain commercial institutions
 which provided it with information regarding the religious organizations; (4)
 information furnished only by those confidential sources was also within
 exemption;  and (5) affidavits established that certain information deleted
 from document was instruction regarding sensitive administrative handling of
 the document, thus warranting nondisclosure under exemption for matters
 relating solely to internal personnel rules and practices of an agency.
  Plaintiff's motion denied;  defendants' motion granted.
  Judgment affirmed, 721 F.2d 828.

 [1] RECORDS
 Affidavits of FBI agents were competent for purposes of establishing Freedom of
 Information Act exemptions and were entitled to be accorded substantial
 weight.  Fed.Rules. Civ.Proc.Rule 56(e), 28 U.S.C.A.;  5 U.S.C.A. s
 552(b)(7), (b)(7)(D).

 [2] RECORDS
 Testimony of FBI agents established that records relating to religious
 organization, its related organizations, and its founder were investigatory
 records compiled for law enforcement purposes, within meaning of Freedom of
 Information Act exemption.  5 U.S.C.A. s 552(b)(7), (b)(7)(D).

 [3] RECORDS
 Congress did not intend to distinguish among types of confidential sources
 afforded protection under Freedom of Information Act exemption from agency
 disclosure of identities of confidential sources and of information furnished
 by such sources.  5 U.S.C.A. s 552(b)(7)(D).

 [4] RECORDS
 FBI properly withheld identities of state, local and foreign law enforcement
 agencies under "confidential source" Freedom of Information Act exemption, with
 respect to information compiled for law enforcement purposes relating to
 religious organization.  5 U.S.C.A. s 552(b)(7)(D).

 [5] RECORDS
 FBI properly withheld identities of commercial institutions, under
 "confidential source" Freedom of Information Act exemption, which provided FBI
 with information regarding religious organization, inasmuch as congressional
 objective behind the exemption, namely, to prevent drying up of law enforcement
 agencies' sources of information, applies equally with regard to commercial
 institutions, at least in situation where specific information is requested
 and there is no claim of agency bad faith.  5 U.S.C.A. s
 552(b)(7)(D).

 [6] RECORDS
 To establish required confidentiality of source under Freedom of Information
 Act exemption, it is only necessary to show that information was given under
 express assurance of confidentiality or in circumstances in which such
 assurance could reasonably be inferred.  5 U.S.C.A. s 552(b)(7)(D).

 [7] RECORDS
 FBI agents' affidavit reflecting understanding of confidentiality underlying
 FBI's exchange of information with cooperating law enforcement agencies and
 certain commercial institutions warranted invoking of "confidential source"
 Freedom of Information Act exemption with respect to information sought by
 religious organization.  Fed.Rules Civ.Proc.Rule 56(e), 28 U.S.C.A.

 [8] RECORDS
 FBI agents' affidavits, in conjunction with examination of requested documents
 themselves, provided sufficient basis to support withholding of information
 furnished by various confidential sources, under Freedom of Information Act
 exemption.  5 U.S.C.A. s 552(b)(7)(D).

 [9] RECORDS
 FBI properly invoked Freedom of Information Act exemption relating to internal
 personnel rules and practices of an agency to withhold information described by
 FBI agents' affidavits as instructions regarding sensitive administrative
 handling of document in question.  5 U.S.C.A. s 552(b)(2).
  *1061 Robert A. Seefried, Earl C. Dudley, Sally A. Regal, Washington, D.C.,
 for plaintiff.
  Nathan Dodell, Ass't U.S. Atty., Washington, D.C., for defendants.
                                   MEMORANDUM

  JOHN LEWIS SMITH, Jr., District Judge.
  The Founding Church of Scientology brought this action under the Freedom of
 Information Act (FOIA), 5 U.S.C. s 552 (1976), in 1975 seeking disclosure of
 all records of the Federal Bureau of Investigation (FBI) pertaining to the
 Church, its related organizations and its founder, L. Ron Hubbard.  After two
 appeals, the case is again before this Court on cross motions for summary
 judgment.
                                       I.
  Although a large number of the documents originally requested by the Church
 were released, the FBI initially withheld certain records under Exemptions 1,
 2, 3, 5, 7(A), 7(B), 7(C) and 7(D) of FOIA, 5 U.S.C. ss 552(b)(1), 552(b)(2),
 552(b)(3), 552(b)(5), 552(b)(7)(A), 552(b)(7)(B), 552(b)(7)(C), 552(b)(7)(D).
 In 1978, this Court granted the FBI's motion for summary judgment on its claims
 of exemption.  Founding Church of Scientology v. Levi, Civ. No. 75-1577
 (D.D.C.1978) (memorandum and order).  The Court of Appeals reversed and
 remanded the case for re-indexing by the FBI and re-examination under the new
 index by this Court.  Founding Church of Scientology v. Bell, 603 F.2d 945
 (D.C.Cir.1979).  Following additional releases of material by the FBI, this
 Court granted the FBI's motion for summary judgment on the remaining issues
 under Exemption 5.  Founding Church of Scientology v. Levi, Civ. No. 75-
 1577 (D.D.C.1980) (memorandum and order).  The Court of Appeals reversed and
 remanded again, directing de novo review of all the original claims of
 exemption under the new index by this Court.   Founding Church of
 Scientology v. Smith, No. 75-1577 (D.C.Cir., filed Sept. 1, 1981)
 (unpublished opinion).
  At this point, the Church's claims on a large number of the documents involved
 have been settled by the parties, and only the FBI's claims of exemption under
 Exemption 7(D) and Exemption 2 of the FOIA are at issue here.  Under Exemption
 7(D), the FBI has withheld material from documents A-18(a), 18(b), 38(a),
 38(b), 46(a), 46(b), 51, 60(a), 60(b), 70(a), 75(a), 75(b), 82, *1062 83,
 120(a), 121, 122(a), 122(b), 127, 132, 133(a), 133(b), 140(a), 140(b), 141,
 142, 148(a), 148(b), 154, 160, 166, 167(a), 171, 177, 178(a), 178(b), 183, 189,
 193(a), 193(b), 212;  B-3, 8, 15(b), 32, 44;  E-2;  F-3(b);  I-1(b), 2(a), 5
 and 9.  Exemption 2 has been used to withhold material only from document A-
 13.  Both parties have filed motions for summary judgment.
  [1] The FBI relies upon the affidavit of Special Agent Martin Wood, filed
 October 22, 1979 in support of the FBI's second motion for summary judgment.
 Also filed at that time was Exhibit A, a document-by-document Vaughn index, and
 Exhibit B, copies of all the reprocessed and redacted documents as they were
 released to the Church.  In addition, Special Agent John N. Phillips filed his
 affidavit on May 28, 1982 supplementing the Wood affidavit and addressing the
 specific concerns raised in the FBI's most recent motion for summary judgment.
 Despite the Church's contentions to the contrary, the Court finds the Wood and
 Phillips affidavits competent for specified purposes discussed below, [FN1]
 see Fed.R.Civ.P. 56(e), and has accorded the affidavits "substantial
 weight," e.g., Ray v. Turner, 587 F.2d 1187, 1191-94 (D.C.Cir.1978);
 Weissman v. CIA, 565 F.2d 692, 697 (D.C.Cir.1977), utilizing them in
 conjunction with the accompanying exhibits.

      FN1. See Part III infra.

                                         II.
  [2] Under Exemption 7(D), an agency may withhold "investigatory records
 compiled for law enforcement purposes, but only to the extent that the
 production of such records would ... disclose the identity of a confidential
 source and, in the case of a record compiled by a criminal law enforcement
 authority in the course of a criminal investigation ... confidential
 information furnished only by the confidential source."  5 U.S.C. s
 552(b)(7)(D).  To meet the first part of the two part inquiry necessitated by
 Exemption 7, a requested document must be shown to be an investigatory record
 "compiled for law enforcement purposes."  FBI v. Abramson, 456 U.S. 615, 102
 S.Ct. 2054, 2059, 72 L.Ed.2d 376, 50 U.S.L.W. 4530, 4532 (U.S. May 24, 1982);
 Pratt v. Webster, 673 F.2d 408, 411-16 (D.C.Cir.1982).  There are two
 critical conditions which must be met before a law enforcement agency passes
 the Exemption 7 threshold:  "First, the agency's investigatory activities that
 give rise to the documents sought must be related to the enforcement of federal
 laws or to the maintenance of national security....  Second, the nexus between
 the investigation and one of the agency's law enforcement duties must be based
 on information sufficient to support at least 'a colorable claim' of its
 rationality."  Id. at 420-21 (emphasis omitted).  After full examination of
 both the affidavits and the actual redacted documents, this Court is convinced
 that the documents at issue easily qualify as "investigatory records for law
 enforcement purposes."  See 5 U.S.C. s 552(b)(7).
  According to the Wood affidavit, File A, from which portions of thirty-one
 documents have been withheld and remain in dispute, consists of communications
 received by the FBI from private individuals complaining of Church conduct or
 requesting information about Church activities.  The file also contains
 memoranda from other law enforcement agencies and information generated as a
 result of field office checks.  File B, from which portions of five documents
 have been withheld and remain in dispute, contains the same type of information
 contained in File A, but with regard to L. Ron Hubbard and Allied Scientists of
 the World.  File E, from which only a small portion of one document remains
 withheld and in dispute, contains communications between L. Ron Hubbard and
 the FBI, and an inter-office memorandum concerning an investigation into a
 matter raised in Hubbard's letter.  File F, from which part of one disputed
 document remains withheld, contains inter-agency memoranda, compiled in
 connection with the case of Scientology v. United States, 412 F.2d 1197, 188
 Ct.Cl. 490 (Ct.Cl.1969), concerning the tax status *1063 of the Church.
 File I, from which parts of four documents remain withheld and in dispute,
 contains inter-agency memoranda concerning Hubbard and his various
 organizations, indexed according to types of federal violations.  The Phillips
 affidavit, as well as the copies of the redacted documents themselves, present
 ample grounds for legitimate concern on the part of the FBI that federal laws
 had been or might be violated by L. Ron Hubbard, the Church or affiliated
 organizations.  Among the criminal activities of which the Church or its
 affiliates were suspected were the unlicensed teaching of medicine and surgery,
 mail fraud, false representation and misbranding of medical devices, blackmail
 and tax evasion.  This was not a case in which the FBI engaged in
 indiscriminate collection of information surrounding the Church and its founder
 in hopes of unearthing a violation of some federal law;  rather, the FBI's
 investigations were prompted by concerned citizens, law enforcement authorities
 and the Church itself.  That a full-scale fraud or criminal proceeding was not
 ongoing or has not been undertaken is not essential to the invocation of the
 7(D) exemption, as long as the sought after materials were amassed for law
 enforcement purposes.   Founding Church of Scientology v. Regan, 670 F.2d
 1158, 1162-63 (D.C.Cir.1981).  The Exemption 7(D) threshold has clearly been
 satisfied here, since the FBI's concern obviously had a plausible basis and a
 rational connection to the Church's activities.  See Pratt v. Webster, 673
 F.2d at 421 (D.C.Cir.1982).
  Once the threshold requirements have been satisfied, Exemption 7(D) contains
 two separate exemptions.  Under it, an agency may withhold records which would
 "disclose the identity of a confidential source," and "in the case of a record
 compiled by a criminal law enforcement authority in the course of a criminal
 investigation ... confidential information furnished only by the confidential
 source."  5 U.S.C. s 552(b)(7)(D).  E.g., Duffin v. Carlson, 636 F.2d
 709, 712 (D.C.Cir.1980).  With regard to the identities of "confidential
 sources" which the FBI seeks to withhold, the Church argues that certain of the
 entities named by the FBI as "confidential sources" are not within the
 definition of that statutory term.  Additionally, the Church asserts that there
 has been no showing of a confidential relationship between the FBI and the
 sources it names, such that the exemption would apply.
  [3][4][5] It is well-established in this circuit that Congress did not
 intend to distinguish among the types of sources afforded protection under
 Exemption 7(D).  Founding Church of Scientology v. Regan, 670 F.2d at 1161
 (quoting Lesar v. United States Department of Justice, 636 F.2d 472
 (D.C.Cir.1980)).  The FBI's withholding of the identities of state, local and
 foreign law enforcement agencies in this case is clearly proper under Baez
 v. United States Department of Justice, 647 F.2d 1328, 1340 (D.C.Cir.1980).
 The Court in Baez held that the word "source" includes "nonfederal entities
 such as state, local, and foreign law enforcement agencies as well as
 individuals such as private citizens and paid informants."  Id. (citing
 Lesar v. United States Department of Justice, 636 F.2d at 489) (footnote
 omitted).  The FBI has also invoked Exemption 7(D) to withhold the identities
 of commercial institutions which provided it with information regarding the
 Church.  This too was proper, since the Congressional objective behind
 Exemption 7(D), to prevent a "drying up" of law enforcement agencies' sources
 of information, see 120 Cong.Rec. 36,865, 36,877 (1974) (remarks of Sen.
 Robert Byrd), applies equally with regard to commercial institutions, compare
 Katz v. Department of Justice, 498 F.Supp. 177, 184 (S.D.N.Y.1979);
 Ferguson v. Kelley, 448 F.Supp. 919, 925 (N.D.Ill.1977), with Dunaway v.
 Webster, 519 F.Supp. 1059, 1082 (N.D.Cal.1981);  Pacheo v. Federal Bureau of
 Investigation, 470 F.Supp. 1091, 1103 (D.P.R.1979), at least in the situation
 where specific information is requested and there is no claim of agency bad
 faith, accord Baez v. United States Department of Justice, 647 F.2d at 1341
 (concurring opinion).
  [6][7] To establish the required confidentiality of a source under Exemption
 *1064 7(D), see Lesar v. United States Department of Justice, 636 F.2d at
 472, it is only necessary to show that the information was given under an
 express assurance of confidentiality or in circumstances in which such an
 assurance could reasonably be inferred.  Radowich v. United States Attorney,
 658 F.2d 957, 960 (4th Cir.1981) (citing Maroscia v. Levi, 569 F.2d 1000,
 1002 (7th Cir.1977).  In this case the Wood and Phillips affidavits state that
 there is an understanding of confidentiality underlying the FBI's exchange of
 information with cooperating law enforcement agencies and commercial
 institutions such as the ones involved here.  Both the affidavits state that
 the FBI has been made aware that unless the confidentiality under which
 information is exchanged continues, the willingness of these entities to
 exchange essential information will be reconsidered.  In a situation where
 confidentiality was not only implied, but assumed, the invocation of Exemption
 7(D) is clearly proper.  Id.
                                      III.
  The Church questions the sufficiency of the Wood and Phillips affidavits,
 arguing that their assertions are not based upon personal knowledge of the
 facts in this case.  See Fed.R.Civ.P. 56(e).  Both Wood and Phillips state
 they are experienced FBI agents, familiar with FBI practice and procedure, and
 with the documents at issue.  They are competent to testify to their own
 observations upon review of the documents, the procedural history of the
 Church's attempts to acquire information held by the FBI, the agency's
 practices and procedures during their own tenure, earlier practices of which
 they possess knowledge, and their own personal experience to the extent that it
 bears relevance to this case.  See Londrigan v. FBI, 670 F.2d 1164, 1174
 (D.C.Cir.1980).  Although neither agent has stated he was present when
 information was obtained from the confidential sources involved here, an
 express showing of confidentiality is not required, cf. id. at 1170 & n. 34,
 when there are other indicia of implied assurances of confidentiality, accord
 id. at 1174.  Examination of copies of the redacted documents at issue here
 shows that the information withheld was of the type that would be disclosed
 within a confidential relationship and by sources requiring protection.  The
 Church does not present evidence of agency bad faith or other reason to
 discount the affidavits, cf. Weisberg v. Department of Justice, 627 F.2d
 365, 368-70 (D.C.Cir.1980);  therefore discovery concerning the underlying
 bases for the conclusions expressed in the affidavits is unnecessary.
 Military Audit Project v. Casey, 656 F.2d 724, 751-52 (D.C.Cir.1981).
 According the affidavits "substantial weight," e.g., Ray v. Turner, 587 F.2d
 at 1191, and weighing the additional indicia of confidentiality, the Court
 holds that the sources involved were "confidential sources," the identities of
 which are protected under Exemption 7(D).
  [8] The FBI invokes the second clause of Exemption 7(D) to withhold
 confidential information furnished only by confidential sources in the course
 of its criminal investigation of the Church.  The Church's argument that these
 records were not "compiled by a criminal law enforcement authority in the
 course of a criminal investigation" is contradicted by the assertions of both
 the Wood and Phillips affidavits.  Additionally, the contents of the documents
 for which this subsection of Exemption 7(D) is invoked themselves suggest that
 the FBI should pursue investigation of possible criminal activity by the
 Church, or that it was doing so. [FN2]  Because the Church raises no
 substantial question as to the affidavits' reliability, see Military Audit
 Project v. Casey, 656 F.2d at 750-52, they are, in conjunction with examination
 of the documents themselves, a sufficient basis to support *1065 the FBI's
 withholding of information furnished by confidential sources under Exemption
 7(D).  See Pratt v. Webster, 673 F.2d at 424 n. 39 (citing Radowich v.
 United States Attorney, 658 F.2d at 964).

      FN2. See e.g., Documents A-60, A-82, and B-34 (suggesting that the FBI
     investigate the Church's activities) and Documents A-18, A-193, B-8, E-2,
     F-3, I-1, I-2, and I-5 (indicating that the FBI considered or conducted
     investigation of the Church).  In this situation, even if Special Agents
     Wood and Phillips were not personally involved in any criminal
     investigation of the Church, their observations and statements, based upon
     review of the documents and their knowledge of FBI practice and procedure
     in criminal investigations, is relevant and admissible for the purpose of
     determining whether the documents were generated "in the course of a
     criminal investigation."

                                         IV.
  [9] Under Exemption 2, an agency is not required to disclose matters that
 are "related solely to the internal personnel rules and practices of an
 agency."  5 U.S.C. s 552(b)(2).  In Crooker v. Bureau of Alcohol,
 Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981), the Court of Appeals for this
 Circuit held that Exemption 2 exempts from mandatory disclosure material which
 meets the test of "predominant internality" if disclosure significantly risks
 circumvention of agency regulations or statutes.  Id. at 1074.  Upholding
 the use of the exemption to withhold the symbols used to refer to FBI
 informants in FBI documents, the Court in Lesar v. United States Department
 of Justice, 636 F.2d at 485, found the exemption applicable to " 'routine
 matters' of 'merely internal significance' in which the public lacks any
 substantial or legitimate interest."  Id.  See also Nix v. United States,
 572 F.2d 998, 1005 (4th Cir.1978) (FBI routing stamps, cover letters, and
 secretary initials within the ambit of Exemption 2);  Maroscia v. Levi, 569
 F.2d 1000, 1002 (7th Cir.1977) (FBI's administrative and mail routing stamps
 held within Exemption 2).
  In this case, the FBI has invoked Exemption 2 to withhold two lines of one
 page of Document A-13, an airgram dated April 17, 1951.  The information
 deleted is described by the Wood and Phillips affidavits as "instructions
 regarding the sensitive administrative handling of the document."  Since the
 information withheld is instruction regarding agency practice and procedure, it
 clearly meets the test of "predominant internality," Crooker v. Bureau of
 Alcohol, Tobacco & Firearms, 670 F.2d at 1067 n. 44.  Given that the Wood and
 Phillips affidavits state that the information is sensitive, it is also true
 that public disclosure of the information would risk circumvention of federal
 statutes, id. at 1066, or could impede the effective operation of the FBI,
 id. at 1075, whole purpose it is to investigate and enforce federal law.
 Cf. Allen v. CIA, 636 F.2d 1287, 1289-90 (D.C.Cir.1980) (filing and routing
 instructions not exempt from disclosure under Exemption 2).  Upon evaluation of
 the "critical considerations" under Exemption 2, Crooker v. Bureau of
 Alcohol, Tobacco & Firearms, 670 F.2d at 1073, the Court holds that the FBI's
 use of the exemption to withhold information from Document A-13 was proper in
 this case.
  An Order consistent with this Memorandum follows.
                                      ORDER
  Upon consideration of plaintiff's motion for summary judgment, defendants'
 motion for summary judgment, oral argument of counsel and the entire record, it
 is by the Court this 3rd day of November 1982
  ORDERED that defendants' motion for summary judgment is granted, and it is
 further
  ORDERED that plaintiff's motion for summary judgment is denied.

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