CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff,
DEPARTMENT OF STATE et al., Defendants.
Civ. A. No. 77-1320.
United States District Court, District of Columbia.
June 19, 1980.
Suit was brought under Freedom of Information Act against Department of State
and others. The defendants moved for summary judgment and plaintiff moved for
more detailed justification, additional records and reconsideration of court's
protective order. The District Court, Aubrey E. Robinson, J., held that: (1)
deletion of names in material sought under Freedom of Information Act was
appropriate to safeguard personal privacy; (2) government properly withheld
documents, in whole or in part, where government affidavits indexing documents
revealed that six of them were verbatim copies of information provided in
confidence by foreign governments and contained information which, if
disclosed, would reveal a confidential foreign source; and (3) State
Department's record pertaining to refusal to issue entry visas was properly
Under Freedom of Information Act, the indexing requirements for documents
sought were met, where original index or supplemental affidavits stated who
prepared each document, to whom it was sent, when it was sent, what exemptions
were applicable, whether materials were segregable, description of document and
justification for the exemption. 5 U.S.C.A. s 552 et seq.
Where documents sought in Freedom of Information Act request appeared to be
directly related to government agency's investigation of party seeking the
documents, the documents fell within scope of the Freedom of Information Act
request and must be disclosed, unless adequate Vaughn index justifying
exemption was submitted. 5 U.S.C.A. s 552 et seq.
Segregability requirement as to documents sought under Freedom of Information
Act was met, where in most instances only small segments of documents had been
deleted, deletions involved names or confidential information that was clearly
exempt, and defendants had not shifted their burden of justifying nondisclosure
by sweeping, generalized claims of exemption, but instead had set forth
specific description of each deleted portion and had explained reasons for each
deletion. 5 U.S.C.A. s 552 et seq.
Unless there is public interest in disclosure of names within material sought
in Freedom of Information Act, deletions of names is appropriate to safeguard
personal privacy. 5 U.S.C.A. s 552(b)(6), (b)(7)(C).
Deletion of names in material sought under Freedom of Information Act was
appropriate to safeguard personal privacy, where party seeking material had not
shown that public purpose would be served by disclosure of names and had policy
and history of seeking retribution against its perceived enemies. 5
U.S.C.A. s 552(b)(6), (b)(7)(C).
Material sought under Freedom of Information Act is exempt from disclosure if
it reveals information provided in confidence by foreign government,
information provided by United States to foreign government in confidence
pursuant to written agreement, or confidential foreign source. 5 U.S.C.A. s
Government properly withheld, in whole or in part, documents sought under
Freedom of Information Act, where government affidavits indexing documents
revealed that six of them were verbatim copies of information provided in
confidence by foreign governments and contained information which, if
disclosed, would reveal confidential foreign source. 5 U.S.C.A. s
Segregability requirement, with respect to information sought under Freedom of
Information Act, exists so that information which would be disclosed but for
its nexus with exempt information is provided to the Freedom of Information Act
plaintiff. 5 U.S.C.A. s 552 et seq.
Since everything in the documents sought under Freedom of Information Act was
by definition exempt, the segregability requirement was inapplicable to them.
5 U.S.C.A. s 552(b)(1).
Information was properly withheld from disclosure under Freedom of Information
Act, where it revealed name of, or identifying information concerning,
confidential source. 5 U.S.C.A. s 552(b)(7)(D).
Document submitted by foreign law enforcement agency in confidence to United
States agency was exempt in its entirety from disclosure under Freedom of
Information Act, where disclosure of information in report would reveal area of
investigation and therefore source of the report. 5 U.S.C.A. s
Permanent record of State Department pertaining to refusal to issue entry visa
was properly withheld pursuant to exemption from Freedom of Information Act
provided for information specifically exempted from disclosure by statute,
where the Immigration and Nationality Act provides that record of State
Department pertaining to issuance or refusal of visas shall be considered
confidential. Immigration and Nationality Act, s 222(f), 8 U.S.C.A. s
1202(f); 5 U.S.C.A. s 552(b)(3).
*419 Andra N. Oakes, William A. Dobrovir, Washington, D. C., for plaintiff.
Stephen S. Cowen, Asst. U. S. Atty., U. S. District Court, Washington, D. C.,
MEMORANDUM OPINION AND ORDER
AUBREY E. ROBINSON, District Judge.
This suit was brought under the Freedom of Information Act (FOIA), 5 U.S.C.
s 552, et seq., by the Church of Scientology against the Department of State,
et al. Before the Court are Defendants' Motion for Summary Judgment and
Plaintiff's Motion for More Detailed Justification, Additional Records and
Reconsideration of the Court's Protective Order. This Court has jurisdiction
under 5 U.S.C. s 552(a)(4)(B) and Rule 56 of the Federal Rules of Civil
Procedure. There are four issues involved: (1) is Defendants' index adequate,
(2) have Defendants met the segregability requirement, (3) have Defendants
exercised exemptions properly, and (4) should the Court reconsider its
Protective Order banning further discovery.
I. PROCEDURES FOLLOWED
As established in 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), and subsequently
reiterated in Ray *420 v. Turner, 587 F.2d 1187 (D.C.Cir.1978), a
District Court should follow a three step procedure to assure responsible de
novo review of agency action on a FOIA request. The Court in Ray v. Turner,
supra, at 1191-92, summarized the steps:
(1) (The Court should require) that the agency submit a "relatively detailed
analysis (of the materials withheld) in manageable segments." "(C)onclusory
and generalized allegations of exemptions" would no longer be accepted by
reviewing courts. . . . (2) "(A)n indexing system (that) would subdivide the
document under consideration into manageable parts cross-referenced to the
relevant portion of the Government's justification" . . . This index would
allow the district court and opposing counsel to locate specific areas of
dispute for further examination and would be an indispensible aid to the Court
of Appeals reviewing the District Court's decision. (3) "(A)dequate adversary
testing" would be ensured by opposing counsel's access to the information
included in the agency's detailed and indexed justification and by in camera
inspection, guided by the detailed affidavit and using special masters
appointed by the court whenever the burden proved to be especially onerous.
(1) This Court has not accepted abstract or conclusory claims of FOIA
exemptions. In the case at bar, the Court did not accept Defendants' five
initial affidavits regarding documents 1-89. Rather, on March 1, 1978, the
Court ordered Defendants to submit a detailed Vaughn index for documents 1-89,
subdivided into manageable parts, and cross-referenced to the government's
justifications for non-disclosure. On May 3, Defendants satisfied the Court's
Order by providing detailed, document-by-document descriptions of the substance
of documents 1-89 divided into manageable segments. In recognition of
Defendants' good faith efforts to provide non-conclusory Vaughn indexes and
justifications, the Court granted Defendants' Motion for a Protective Order
prohibiting further discovery. On October 2, 1978, Plaintiff requested
documents referenced in material disclosed pursuant to Plaintiff's original
request. In response, the government released documents 90-92 in part and
documents 93-100 in full. Defendants also submitted six additional affidavits,
further indexing documents 1-89 and providing more specific justifications for
deletions. For documents 1-100, the original index or supplemental affidavits
state (1) who prepared the document, (2) to whom it was sent, (3) when it was
sent, (4) what exemptions are applicable, (5) whether the materials are
segregable, (6) a description of the document, and (7) justification for the
exemption. The indexing requirements for these documents have therefore been
met. See Church of Scientology v. Bell, No. 76-1006, slip op. at 2 (D.D.C.,
Jan. 29, 1980).
(2) Plaintiff has also asked this Court to order Defendants to provide non-
conclusory Vaughn indexes for referenced documents Request Nos. 1-21 and for
secondarily referenced documents ABIJAN 2824, STATE 169389, STATE 208221 and
"enclosure," STATE 132692 and "report of Greek authorities." The Defendants
claim that these twenty-seven documents (some of which have been released in
part or in full) fall outside the scope of Plaintiff's original request.
Plaintiff's original FOIA request sought all records in the Department of State
concerning the Church of Scientology, and FBI records for transmission of
any information on Scientology to foreign governments, Interpol or municipal
agencies. The context and titles of these additional documents, which
Plaintiff has specifically identified from records previously disclosed, appear
directly related to the Department of State investigation of the Church of
Scientology. Consequently, the documents fall within the scope of Plaintiff's
FOIA request, and must be disclosed unless an adequate Vaughn index is
(3) Plaintiff contends that Defendants have not satisfied the segregability
requirement for documents 1-100. Plaintiff's assertion *421 is incorrect.
In most [FN1] instances, only small segments of documents 1-100 have been
deleted. These deletions involve names or confidential information that is
clearly exempt. See discussion, infra. Moreover, Defendants have not shifted
their burden of justifying non-disclosure to the Court "by sweeping,
generalized claims of exemption." Mead Data Central Inc. v. USAF, 566 F.2d
242, 260 (D.C.Cir.1977). Instead, they have set forth specific descriptions of
each deleted portion and have explained the reasons for each deletion. The
segregability requirement has been met.
FN1. Defendants correctly contend that segregation is unnecessary for six
of the twelve documents withheld pursuant to Exemption 1. See discussion,
II. PARTICULAR EXEMPTIONS CLAIMED
(4, 5) Exemption 6 of FOIA, 5 U.S.C. s 552(b)(6), permits agencies to
withhold information to protect individuals' privacy. Exemption 6 states:
(b) This section does not apply to matters that are . . . (6) personnel and
medical and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.
The legislative history of Exemption 6 is informative. H.R.Rep.No.1497, 89th
Cong., 2d Sess. 11 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2428
The limitation of a "clearly unwarranted invasion of privacy" provides a
proper balance between the protection of an individual's right of privacy and
the preservation of the public's right to Government information by excluding
those kinds of files the disclosure of which might harm the individual.
Similarly, the S.Rep.No.813, 89th Cong., 1st Sess., 9 (1965) explained:
The phrase "clearly unwarranted invasion of personal privacy" enunciates a
policy that will involve a balancing of interests between protection of an
individual's private affairs from unnecessary public scrutiny, and the
preservation of the public right to government information. (emphasis added).
Exemption 7(C), like Exemption 6, allows agencies to withhold material to
safeguard personal privacy. Exemption 7(C) bars disclosure:
(of) investigatory records compiled for law enforcement purposes, but only to
the extent that the production of such records would . . . constitute an
unwarranted invasion of personal privacy.
The Exemption 7(C) standard is less stringent than the Exemption 6 standard
since the term "clearly" is deleted, but the purposes are similar. Church
of Scientology v. Bell, supra, slip op. at 6. In the instant litigation,
Defendants have withheld, pursuant to Exemptions 6 and 7(C), the identities of
third persons who provided information and participated in the investigation of
the Church of Scientology. Unless there is a public interest in the disclosure
of names, Exemption 6 or 7(C) deletions are appropriate. Dept. of the Air
Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); Getman v.
NLRB, 450 F.2d 670 (D.C.Cir.1971); Wine Hobby U.S.A., Inc. v. U. S. Bureau
of Alcohol, Tobacco, and Firearms, 502 F.2d 133 (3d Cir. 1974). Plaintiff has
not shown that a public purpose would be served by the disclosure of the names
in question. Furthermore, Plaintiff has a practice of harassing its
"suppressors." Some documents, such as numbers 1, 33, 81, and 87, describe
bizarre situations and harsh punishments involving disenchanted
Scientologists. In addition, Church leaders have been found liable for
malicious prosecution and convicted of theft of government documents. See
Allard v. Church of Scientology, 129 Cal.Rptr. 797 (Cal.App.1976), cert.
denied, 429 U.S. 1091, 97 S.Ct. 1101, 51 L.Ed.2d 537 (1977); United
States v. Hubbard, 474 F.Supp. 64, 70-71 (D.D.C.1979). Given Plaintiff's
"policy and history of seeking retribution against its perceived enemies,"
Church of Scientology v. Bell, supra, slip op. at 4, the Exemption 6 and
7(C) claims must be upheld. Id., at 3, 4; see also Church of Scientology
v. Department *422 of Army, et al., 611 F.2d 738, 744-48 (9th Cir. 1979);
Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978).
(6) Exemption 1 states that documents are exempt when they are:
(A) specifically authorized under criteria established by an Executive order
to be kept secret in the interest of national defense or foreign policy and (B)
are in fact properly classified pursuant to such Executive order.
Executive Order 12065, which supercedes Executive Order 11652, states that
documents are properly classified if their disclosure "could reasonably be
expected to cause at least identifiable damage to the national security." The
Order further provides that "unauthorized disclosure of foreign government
information or the identity of a confidential foreign source is presumed to
cause at least identifiable damage to national security." Foreign government
information is defined as "information provided to the United States in
confidence by, or produced by the United States pursuant to a written joint
arrangement requiring confidentiality with, a foreign government or
international organization of governments." Thus, if material reveals (1)
information provided in confidence by a foreign government, (2) information
provided by the United States to a foreign government in confidence pursuant to
a written agreement, or (3) a confidential foreign source, it is exempt. See
Church of Scientology v. Turner, No. 75-1048 slip op. at 4 (D.D.C. Dec. 13,
(7) Twelve documents have been withheld pursuant to Exemption 1. The nine
government affidavits indexing these documents reveal that six of the documents
are verbatim copies of information provided in confidence by foreign
governments. The other six documents contain information which, if disclosed,
would reveal a confidential foreign source. Only this information has been
withheld from the latter six documents. These affidavits are clear and
convincing, and must be accorded "substantial weight" by this Court. Ray v.
Turner, supra, at 1194. The Court concludes that the government properly
withheld, in whole or in part, these documents.
(8, 9) Defendants have met the segregability requirement for six of the
Exemption 1 documents, but admittedly refused to do so for the six documents
provided in confidence by foreign governments. Plaintiff contends that the
requirement must be met for these documents, citing Church of Scientology v.
Bell, 603 F.2d 945, 950-51 (D.C.Cir.1979). This contention is misplaced. The
segregation requirement exists so that information which would be disclosed but
for its nexus with exempt information is provided to the FOIA Plaintiff. All
information provided in confidence by foreign governments to the United States
is, under terms of Executive Order 12065, exempt. This broad exemption exists
because it is disclosure qua disclosure, and not disclosure of information,
that would cause "at least identifiable damage to the national security."
Since everything in those six documents is by definition exempt, the
segregability requirement is inapplicable to them. Defendants' Exemption 1
(10, 11) Exemption 7(D) permits an agency to withhold information contained
in records compiled for law enforcement purposes if disclosure would reveal
"the identity of a confidential source." See Church of Scientology v. Bell,
supra, slip op. at 4. Defendants' affidavits explain, in detail, that
information was withheld only if it revealed the name or identifying
information of a confidential source. This information was properly
withheld. Id.; U. S. v. Nix, supra, 1003-1004. Defendants have withheld
one document, claiming that the information itself would reveal a foreign
confidential source. This document is a report submitted by a foreign law
enforcement agency in confidence. Disclosure of the information in the report
would reveal the area of investigation, and therefore the source of the
report. It is exempt in its entirety. See Mitsubishi Elec. Co. v. Dept. of
Justice, No. 76-813, slip op. at 6 (D.D.C. April 1, 1977).
(12) Exemption 3 provides that an agency need not release information which
*423 specifically exempted from disclosure by statute (other than section
552b of this title), provided that such statute (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.
Defendants have withheld one document pursuant to Exemption 3, relying upon
Section 222(f) of the Immigration and Nationality Act, 8 U.S.C. s
1202(f). The pertinent sections of this statute satisfy the criteria mandated
by Exemption 3. Section 222(f) provides that "(t)he records of the
Department of State . . . pertaining to the issuance or refusal or visas or
permits to enter the United States shall be considered confidential . . . ."
The document in question is a permanent record of the State Department that
pertains directly to Defendants' refusal to issue an entry Visa. It was
therefore properly withheld pursuant to Exemption 3.
III. RECONSIDERATION OF PROTECTIVE ORDER
The Defendants have already provided extensive discovery in this litigation.
In addition, the Defendants have supplied an adequate Vaughn index for
documents 1-100. Finally, the Court is ordering the Government to submit a
detailed Vaughn index for Request Nos. 1-21 and the six documents referenced
therein. For the reasons stated, the Court maintains the Protective Order,
banning further discovery in this case. An appropriate Order follows this