CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff-Appellant,
v.
UNITED STATES POSTAL SERVICE et al., Defendants-Appellees.
No. 79-3655.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 5, 1980.
Decided Dec. 15, 1980.
After remand, 593 F.2d 902, United States District Court for the Central
District of California, Manuel L. Real, J., held that postal service's
investigatory files were exempt from disclosure under the Freedom of
Information Act and appeal was taken. The Court of Appeals, Tang, Circuit
Judge, held that Postal Reorganization Act's investigatory files exemption was
not an exempting statute within the meaning of amended Freedom of Information
Act exemption covering statutes which require matters to be withheld from the
public in such a manner as to leave no discretion on the issue or which
establish particular criteria for withholding or referred to particular types
of matters to be withheld.
Reversed and remanded.
RECORDS
Postal Reorganization Act's investigatory files exemption is not an exempting
statute within the meaning of amended Freedom of Information Act exemption
covering a statute which requires matters to be withheld from the public in
such a manner as to leave no discretion on the issue or which establish
particular criteria for withholding or refer to particular types of matters to
be withheld. 5 U.S.C.A. s 552(b)(3); 39 U.S.C.A. s 410(c)(6).
*1327 Barry Leigh Weissman, Weissman & Weinstein, P. C., Beverly Hills,
Cal., for plaintiff-appellant.
Alan L. Ferber, Washington, D. C., argued, for defendants-appellees; Leonard
Schaitman, Alan L. Ferber, Dept. of Justice, Washington, D. C., on brief.
Appeal from the United States District Court for the Central District of
California.
Before WRIGHT and TANG, Circuit Judges, and HANSON,[FN*] District Judge.
FN* Honorable William C. Hanson, Senior United States District Judge for
the Northern and Southern Districts of Iowa, sitting by designation.
TANG, Circuit Judge:
Church of Scientology (the Church) appeals from the district court's refusal
to *1328 order the United States Postal Service to comply with the Church's
Freedom of Information Act (FOIA) request. The district court decision came
after this court remanded the case for consideration of the effect of the 1976
FOIA amendments on the Postal Service's claimed exemption.[FN1] The Church
contends that the FOIA fully applies to the Postal Service and that the Postal
Reorganization Act's investigatory files exemption, 39 U.S.C. s 410(c)(6),
is not an exempting statute within the meaning of the amended FOIA, 5 U.S.C.
s 552(b)(3). We agree, and reverse the judgment of the district court.
FN1. See Church of Scientology v. United States Postal Service, 593
F.2d 902 (9th Cir. 1979).
I.
Facts
The Postal Reorganization Act, 39 U.S.C. ss 101-5604, extended the reach
of the FOIA to the newly created Postal Service. In accordance with the FOIA,
5 U.S.C. s 552(a)(3),[FN2] the Church sought to obtain any records in
possession of the Postal Service that concerned the Church. The Postal Service
released numerous documents to the Church, but withheld certain materials,
compiled during its investigations of possible criminal offenses.
FN2. Section 552(a)(3) provides in pertinent part:
(a)
(3) ... each agency, upon any request for records which (A) reasonably
describes such records and (B) is made in accordance with published
rules ... shall make the records promptly available to any person.
Unconvinced that the documents were properly withheld, the Church brought a
district court action to compel disclosure. After an in camera inspection of
the documents, the district court concluded that the files had been compiled
for law enforcement purposes. The court granted summary judgment to the Postal
Service, holding that the investigatory files were specifically exempted from
disclosure by the FOIA, 5 U.S.C. s 552(b)(3) (Exemption 3),[FN3] which
incorporates the postal exemption, 39 U.S.C. s 410(c)(6).[FN4]
FN3. See footnote 7 and accompanying text infra.
FN4. Section 410(c)(6), 39 U.S.C., reads as follows:
(c) Subsection (b)(1) of this section (making FOIA s 552 applicable to
the Postal Service) shall not require the disclosure of
(6) investigatory files, whether or not considered closed, compiled for law
enforcement purposes except to the extent available by law to a party other
than the Postal Service.
On appeal, this court remanded to the district court to determine whether
section 410(c)(6) qualified as an exempting statute within the meaning of
the amended version of Exemption 3. 593 F.2d at 904. The district court
was also instructed that if it determined that section 410(c)(6) was such an
exempting statute, it should then decide whether the Postal Service had
complied with its own regulation, found at 39 C.F.R. s 265.6(c),[FN5] and
whether the documents were properly withheld under FOIA Exemptions *1329 5
and 7,[FN6] the alternative grounds claimed by the Postal Service. Id. at
905 n.7.
FN5. Section 265.6(c), 39 C.F.R., provides:
(c) Investigatory records. (1) Investigatory files compiled for law
enforcement purposes, whether or not considered closed, are exempt by
statute from mandatory disclosure except to the extent otherwise available
by law to a party other than the Postal Service, 39 U.S.C. s 410(c)(6).
As a matter of policy, however, the Postal Service will normally make
investigatory records available upon request unless the production of these
records would:
(i) Interfere with enforcement proceedings,
(ii) Deprive a person of a right to a fair trial or an impartial
adjudication,
(iii) Constitute an unwarranted invasion of personal privacy,
(iv) Disclose the identity of a confidential source, and, in the case of a
record compiled by the Postal Inspection Service in the course of a
criminal investigation or of a lawful national security intelligence
investigation, confidential information furnished only by the confidential
source,
(v) Disclose investigative techniques and procedures, or
(vi) Endanger the life or physical safety of law enforcement personnel.
(2) Authority to disclose investigatory records to persons outside the
Postal Service must be obtained from the Chief Postal Inspector, United
States Postal Service, Washington, D. C. 20260, or his designee.
FN6. Exemption 5, 5 U.S.C. s 552(b)(5), and Exemption 7, 5 U.S.C. s
552(b)(7), provide as follows:
(b) This section does not apply to matters that are
(5) inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the
agency;
(7) investigatory records compiled for law enforcement purposes, but only
to the extent that the production of such records would (A) interfere with
enforcement proceedings, (B) deprive a person of a right to a fair trial or
an impartial adjudication, (C) constitute an unwarranted invasion of
personal privacy, (D) 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, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source, (E) disclose investigative
techniques and procedures, or (F) endanger the life or physical safety of
law enforcement personnel ....
The parties simultaneously filed motions for summary judgment in the district
court, addressing the issues raised in the remand order, reviving old
arguments, and formulating new ones. The district court granted the Postal
Service's motion for summary judgment finding that (1) section 410(c)(6)
constitutes an exempting statute under the amended FOIA Exemption 3; (2) the
information was properly withheld as material "compiled for law enforcement
purposes; " and (3) the Postal Service regulations are permissive and thus do
not require disclosure. The Church again appeals.
II.
Section 410(c)(6) as an Exempting Statute
The Church argues that the district court erred in holding that section
410(c) (6) is an exempting statute within the meaning of amended FOIA Exemption
3. As originally enacted, Exemption 3 simply shielded material "specifically
exempted from disclosure by statute." In 1976, Congress narrowed Exemption 3
to cover a statute only if it "(A) requires that the matters be withheld from
the public in such a manner as to leave no discretion on the issue, or (B)
establishes particular criteria for withholding or refers to particular types
of matters to be withheld ...." [FN7]
FN7. The amendment was part of the Government in the Sunshine Act, Pub.L.
No. 94-409, 90 Stat. 1241, 1247 (1976).
The legislative purpose of this amendment has been thoroughly discussed
elsewhere. For example, in Irons & Sears v. Dann, 606 F.2d 1215, 1219-20
(D.C.Cir.1979), cert. denied, Irons & Sears v. Commissioner of Patents &
Trademarks, 444 U.S. 1075, 100 S.Ct. 1021, 62 L.Ed.2d 757 (1980), the court
summed up the legislative history by stating:
Congress' goal was to overrule legislatively the Supreme Court's decision in
Administrator, FAA v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d
164 (1975), which had given an expansive reading to the version of Exemption 3
then in force. The amended text and its legislative history make clear that
Congress did not want the exemption to be triggered by every statute that in
any way gives administrators discretion to withhold documents from the public.
On the contrary, ... (i)t provided that only explicit nondisclosure statutes
that evidence a congressional determination that certain materials ought to be
kept in confidence will be sufficient to qualify under the exemption (footnotes
omitted).[FN8]
FN8. In Robertson, the Supreme Court held that section 1104 of the
Federal Aviation Act of 1958, 49 U.S.C. s 1504, was an exempting statute
within the meaning of Exemption 3. Section 1104 permitted the FAA
administrator to withhold certain reports when the administrator determined
that disclosure "would adversely affect" the subject of the report and was
not "in the interest of the public." The Robertson court reasoned that
because there was no indication that Congress intended to exclude any
existing nondisclosure statute from Exemption 3. all existing laws
permitting confidentiality should stand.
"Congress did not, however, itself undertake to sort out those nondisclosure
statutes *1330 that it comprehended as remaining within the exemption from
those that it intended to exclude. Instead, it left that task for the
courts ...." American Jewish Congress v. Kreps, 574 F.2d 624, 628
(D.C.Cir.1978).
The Postal Service apparently concedes that section 410(c) fails to meet
the requirements of subsection (A) of Exemption 3 because it gives the agency
complete discretion to grant or withhold investigatory files by providing that
the section incorporating the FOIA "shall not require disclosure" in certain
cases.[FN9] It contends, however, that the (c)(6) provision need satisfy only
one of the two subsections in order to qualify as an FOIA exempting statute,
and that it in fact meets the subsection (B) criteria.
FN9. There is no doubt that the two subsections of Exemption 3 are
separate and distinct. See Irons & Sears, 606 F.2d at 1220; Lee
Pharmaceuticals v. Kreps, 577 F.2d 610, at 616 n.8 (9th Cir. 1978);
American Jewish Congress, 574 F.2d at 628. "Subsection (A), on its
face, is too rigorous to tolerate any decisionmaking on the administrative
level. It embraces only those statutes incorporating a congressional
mandate of confidentiality that, however general, is 'absolute and without
exception' " (footnotes omitted). American Jewish Congress, 574 F.2d at
628.
a. The Legal Standard
Subsection (B) necessarily contemplates some exercise of administrative
discretion, "but its unmistakable thrust, like that of subsection (A), is to
assure that the basic policy decision on governmental secrecy be made by the
Legislative rather than the Executive branch." Id. The Postal Service
argues that the "investigatory files compiled for law enforcement purposes"
protected by (c)(6), are "particular types of matters to be withheld," and
therefore satisfy subsection (B). It points out that (c)(6) requires no
"guesswork" and sets up no "indefinite delineation of categories." Specifying
such a concrete category, the Postal Service suggests, is all that subsection
(B) requires.
This Postal Service premise, however, rests on too simplistic an analysis of
subsection (B) and its judicial gloss. In American Jewish Congress, the
District of Columbia Circuit held that section 7(c) of the Export
Administration Act, 50 U.S.C. App. s 2406(c), was not an exempting statute
under Exemption 3. That statute prohibited disclosure of "information ...
deemed confidential or with reference to which a request for confidential
treatment is made by the person furnishing such information," unless the agency
decides that withholding the information, "is contrary to the national
interest." In determining that the requirements of neither subsection (A) nor
(B) were satisfied, the court stated:
Nondisclosure is countenanced by Subsection (B) if, but only if, the
enactment is the product of congressional appreciation of the dangers inherent
in airing particular data and incorporates a formula whereby the administrator
may determine precisely whether disclosure in any instance would pose the
hazard that Congress foresaw.
574 F.2d at 628-29.
In other words, the policy that the legislature, not the executive, should
make decisions about secrecy is frustrated if a statute includes "within its
sweep provisions reflecting no more than a vague apprehension that an agency
might someday fall heir to sensitive information." Id. at 628.
The American Jewish Congress court, then, suggests two necessary
considerations in deciding whether a given "criterion" or enumerated matter
satisfies subsection (B). First, a court must consider the underlying
congressional intent to exempt material from the FOIA. Somehow Congress must
manifest its appreciation of the specific dangers of disclosure, and thus its
intent to exempt, or subsection (B) goes unsatisfied. Second, a court must
analyze, as it does under subsection (A), the amount of discretion left to the
agency. For, as the court noted, statutes setting forth very general
benchmarks for secrecy "in fact delegate to administrators the entire burden of
identifying the problems disclosure might generate" and thus "do not satisfy
subsection (B)'s requirement that Congress have articulated 'particular
criteria.' " Id. at 629.
*1331 Contrary to the Postal Service's contention, nothing in the line of
cases that find certain provisions are exempting statutes within the meaning of
Exemption 3 suggests otherwise. For example, in Lee Pharmaceuticals v.
Kreps, 577 F.2d 610 (9th Cir. 1978), this court examined section 122 of the
Patent Act, 35 U.S.C. s 122, in light of FOIA Exemption 3. Section 122
provides that patent applications must not be released unless the applicant
gives authority, release is necessary to carry out other congressional
provisions, or the Commissioner determines it is necessary because of "special
circumstances." In holding that section 122 is a subsection (B) exempting
statute, the court looked to both legislative intent and degree of discretion.
It stressed that nothing in the legislative history supported the view that
Congress intended to exclude section 122 from FOIA coverage. 577 F.2d at
617. In fact, it found to hold otherwise would mean "destruction of the patent
system." Id. Accord Irons & Sears v. Dann, 606 F.2d at 1221. Further,
although the court recognized that subsection (B) "could provide for limited
discretionary disclosure," in quoting Sears v. Gottschalk, 502 F.2d 122,
126-27 (4th Cir. 1974), cert. denied sub nom., Sears v. Dann, 422 U.S. 1056,
95 S.Ct. 2680, 45 L.Ed.2d 709 (1975), the court suggested that the absence of
guidelines for the Commissioner's exercise of discretion "would not be
determinative" because "applications for patents" is a narrow enough class of
items. Id. at 616 n.8.
Likewise, in Founding Church of Scientology v. National Security Agency,
610 F.2d 824 (D.C.Cir.1979), the District of Columbia Circuit held that a
provision involving the National Security Agency satisfied subsection (B), but
not (A). In so holding, the court stated that an examination of the statute
"and its legislative history confirms the view that it manifests a
'congressional appreciation of the dangers inherent in airing particular data,'
and thus satisfies the strictures of Subsection (B) (footnote omitted)."
610 F.2d at 827-28.
b. Legislative Intent
In first turning to the question whether the legislature intended to exempt
Postal Service investigatory files from FOIA disclosure, we do not find that
Congress appreciated the dangers inherent in disclosing "investigatory files",
thereby formulating criteria "whereby the administrator may determine precisely
whether disclosure in any instance would pose the hazard that Congress
foresaw." [FN10] American Jewish Congress, 574 F.2d at 628-29. To the
contrary, in amending FOIA Exemption 7, Congress made strong statements about
the hazards of agencies withholding, carte blanche, any information thrust into
an "investigatory file."
FN10. Moreover, it certainly could not be said, as it was in Lee
Pharmaceuticals and Irons & Sears, that the structure of the agency would
be jeopardized by not finding that section 410(c)(6) is an exempting
statute.
The legislative history of Exemption 7, then, provides persuasive evidence of
the congressional attitude toward exemption of investigatory materials. As
originally enacted, Exemption 7 simply permitted nondisclosure of
"investigatory files compiled for law enforcement purposes except to the extent
available by law to a private party." 80 Stat. 251 (1966). The only
difference between the original Exemption 7 and the (c)(6) postal exemption is
that the latter additionally covers investigatory files, "whether or not
considered closed." [FN11] In 1974, FOIA Exemption 7 was rewritten to permit
the nondisclosure of "investigatory records compiled for law enforcement
purposes, but only to the extent that producing such records " would involve
one of six enumerated dangers (emphasis added).[FN12]
FN11. See footnote 4 supra.
FN12. See footnote 6 supra.
The Supreme Court thoroughly reviewed the legislative history and purpose of
Exemption 7 in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct.
2311, 57 L.Ed.2d 159.[FN13] In proposing the amendment, *1332 "Senator Hart
emphasized his concern that 'material cannot be and ought not be exempted
merely because it can be categorized as an investigatory file compiled for law
enforcement purposes.' " Id. at 227, 98 S.Ct. at 2319, quoting the Freedom
of Information Act Source Book, Sen. Doc. 93-82, Subcommittee on Administrative
Practice & Procedure, Senate Judiciary Committee, 93rd Cong., 2d Sess. 332
(1974). As Congressman Moorehead explained to the House, this concern derived
from " 'recent court decisions' that had applied the exemptions to
investigatory files 'even if they ha(d) long since lost any requirement for
secrecy.' " Id. at 230, 98 S.Ct. at 2321, quoting H.R.Rep.No.92-1419, 92d
Cong., 2d Sess. (1972).[FN14] Such cases, "in Senator Hart's view, erected a
'stone wall' against public access to any material in an investigatory file."
Id. at 229, 98 S.Ct. at 2320.[FN15]
FN13. In Robbins, the court held that Exemption 7(A) entitled the NLRB
to withhold from disclosure the statements of witnesses the Board intended
to call at an unfair labor practice hearing.
FN14. Senator Hart specifically named four decisions of the D. C.
Circuit: Weisberg v. U.S. Dept. of Justice, 489 F.2d 1195 (1973), cert.
denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772; Aspin v.
Department of Defense, 491 F.2d 24 (1973); Ditlow v. Brinegar, 494 F.2d
1073, cert. denied, 419 U.S. 974, 95 S.Ct. 238, 42 L.Ed.2d 188 (1974);
and Center for National Policy Review on Race and Urban Issues v.
Weinberger, 502 F.2d 370 (1974). Robbins, 437 U.S. at 227-28, 98 S.Ct.
at 2319-2320.
FN15. As the Court discussed:
Senator Hart believed that his amendment would rectify these erroneous
judicial interpretations and clarify Congress' original intent in two
ways. First, by substituting the word "records" for "files," it would make
clear that courts had to consider the nature of the particular document as
to which exemption was claimed, in order to avoid the possibility of
impermissible "commingling" by an agency placing in an investigatory file
material that did not legitimately have to be kept confidential. Second,
it would explicitly enumerate the purposes and objectives of the Exemption,
and thus require reviewing courts to "look( ) to the reasons" for allowing
withholding of investigatory files before making their decisions. The
"wooden( ) and mechanical( )" approach taken by the D. C. Circuit and
disapproved by Congress would thereby be eliminated.
Id. at 229-30, 98 S.Ct. at 2320-2321 (citations omitted).
In originally enacting Exemption 7, then, Congress recognized that "law
enforcement agencies had legitimate needs to keep certain records confidential,
lest the agencies be hindered in their investigations or placed at a
disadvantage when it came time to present their case." Id. at 224, 98 S.Ct.
at 2318. The thrust of congressional concern and its purpose in its amendment
of Exemption 7, however, "was to indicate that 'with passage of time, ... when
the investigation is all over and the purpose and point of it has expired, it
would no longer be an interference with enforcement proceedings and there ought
to be ... disclosure.' " Id. at 232, 98 S.Ct. at 2322.
The Postal Service argues that the congressional concern that led to amendment
of Exemption 7 should have no bearing here. Rather, it suggests that by virtue
of its "special relationship to the Federal Government," the Postal Service
enjoys the power to preempt the FOIA. This special relationship, the Postal
Service contends, is manifested by section 410(a), 39 U.S.C., which
provides:
(a) Except as provided by subsection (b) of this section, and except as
otherwise provided in this title or insofar as such laws remain in force as
rules or regulations of the Postal Service, no Federal law dealing with public
or Federal contracts, property, works, officers, employees, budgets, or funds,
including the provisions of chapters 5 and 7 of title 5, shall apply to
the exercise of the powers of the Postal Service.
The argument is unconvincing. The Postal Reorganization Act was passed to
"(e)liminate serious handicaps that (were then) imposed on the Postal Service
by certain legislative, budgetary, financial, and personnel policies that are
outmoded, unnecessary, and inconsistent with the modern management and business
practices that must be available if the American public is to enjoy efficient
and economical postal service ..." H.R.Rep.No.91-1104, 91st Cong., 2d Sess. 2,
reprinted in (1970) U.S.Code *1333 Cong. & Ad. News, pp. 3649, 3650. In
other words, by limiting the applicability of some federal laws, Congress
intended to free the service from "shared management" so it could operate its
day-to-day affairs in a more "businesslike way." Id. at 5, U.S.Code Cong. &
Ad. News at 3653. In this effort, Congress surely did not mean to place the
Postal Service on a pedestal removed from the reaches of social policy and
legislation. To the contrary, Congress envisioned that its fundamental postal
reform would place responsibility for "managing the system" in a single place,
but "with appropriate safeguards against abuse of that responsibility and
appropriate assurances of continued congressional surveillance." Id.
The Postal Service cites Zale Corp. v. United States Internal Revenue
Service, 481 F.Supp. 486 (D.D.C.1979) as support for its theory of independence
from the FOIA. In that case, the court held that a statute in the Internal
Revenue Code governed despite a conflicting FOIA provision. The case is
distinguishable.
In Zale, the court emphasized that Congress passed the IRS statute after
the FOIA. Further, the court found that "the secrecy of tax returns and
related information has long been favored in practice, and it is not surprising
that Congress would seek to carve out a special protection for this unique and
highly sensitive type of information." Id. at 489. Finally, the court
noted the elaborate detail of the IRS section, and concluded that no evidence
suggested Congress wished to frustrate its "clear purpose and structure."
Id.
In the case sub judice, Congress passed the FOIA amendment after the postal
exemption, not before as in Zale. And Congress provided a far more detailed
structure in Exemption 7 than it had in the (c)(6) postal exemption. Moreover,
the express purpose of the IRS statute in Zale stood in "sharp contrast to
FOIA's stated preference for disclosure to the general public." Id.
Presumably here the purpose of both statutes is to strike a balance between the
public need for information and an agency's legitimate need to preserve
confidentiality in its investigations. In any event, no evidence of a contrary
purpose has been suggested, and we are unable to divine one.
c. Amount of Discretion
Not only do we find no congressional intent to exempt the Postal Service from
the rigors of the FOIA, but we also conclude that section 410(c)(6) provides
insufficient specificity to take it out of the impermissible range of agency
discretion to make decisions rightfully belonging to the legislature. Unlike
the exempting statute in Lee Pharmaceuticals v. Kreps, 577 F.2d 610 (9th
Cir. 1978), cert. denied, 439 U.S. 1073, 99 S.Ct. 847, 59 L.Ed.2d 40
(1979), section 410(c) permits the Postal Service total discretion to give
or restrict any or all of its investigatory files.[FN16] Thus, it is of no
moment that (c)(6) narrows the range of documents to investigatory files
"compiled for law enforcement purposes." Moreover, in amending Exemption 7 to
read "investigatory records", Congress has already expressly decided that the
term "investigatory files" allows too much agency discretion. Therefore, we
hold that section 410(c)(6) is not an Exemption 3 statute.[FN17]
FN16. See also, Consumer Product Safety Comm'n v. GTE Sylvania,
Inc., --- U.S. ----, ---- - ----, 100 S.Ct. 2051, 2062-63, 64 L.Ed.2d 766
(1980); Irons & Sears v. Dann, 606 F.2d at 1219-1221 (patent statute);
Chamberlain v. Kurtz, 589 F.2d 827 (5th Cir.), cert. denied, 444 U.S.
842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979) (tax statute); Marks v. CIA, 590
F.2d 997 (D.C.Cir.1978); and Seymour v. Barabba, 559 F.2d 806
(D.C.Cir.1977) (Bureau of Census statute). Cf. Founding Church of
Scientology v. National Security Agency, 610 F.2d at 828-30 (statute
allowing considerable agency discretion found to be intended by legislature
to exempt under subsection (B)).
FN17. The Postal Service urges us to follow an unpublished court
Memorandum, McCloskey v. United States Department of Justice, No. 77-
470 (D.D.C. Nov. 8, 1978), holding that section 410(c) in conjunction
with FOIA Exemption 3 affords a statutory exemption to the requested
production. The case, however, lacks precedential value and contains no
rationale to support its holding.
Because we find section 410(c)(6) is not an Exemption 3 statute, we do
not reach the Church's other arguments that (1) Congress intended Exemption
3 to preserve only those exemptions in existence in 1966 when the FOIA was
enacted; (2) the 1974 amendment of Exemption 7 repealed section
410(c)(6) by implication; and (3) the Postal Service has not complied with
its own regulation, 39 C.F.R. s 265.6(c).
*1334 We reverse the judgment of the district court, but remand for a
determination of the remaining issues whether the Postal Service failed to meet
its statutory burden of proof,[FN18] and whether the requested information is
exempt from disclosure under FOIA Exemptions 5 and 7.
FN18. Section 552(a)(4)(B) of 5 U.S.C. places the burden on the agency
"to sustain its action." The Church relies on the guidelines adopted in
Ray v. Turner, 587 F.2d 1187 (D.C.Cir.1978), and Vaughn v. Rosen, 484
F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39
L.Ed.2d 873 (1974), to support its contention that the Postal Service
affidavits failed to provide enough detail for the district court to
determine that the Service had met its burden.
Reversed and remanded.