The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D.C., INC., Plaintiff,
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.
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
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).
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).
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).
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
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).
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.
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).
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.,
Nathan Dodell, Ass't U.S. Atty., Washington, D.C., for defendants.
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
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)
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.
 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.
 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.
 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
 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.
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).
 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
 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
An Order consistent with this Memorandum follows.
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
ORDERED that plaintiff's motion for summary judgment is denied.