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.
                      G. William MILLER et al., Defendants.
                              Civ. A. No. 75-1471.
               United States District Court, District of Columbia.
                                 April 17, 1980.
                   On Motion for Reconsideration May 13, 1980.
  Action was brought against the Treasury Department and the United States
 bureau of an international police organization and other defendants for
 disclosure of records under the Freedom of Information Act.  The District
 Court, Bryant, Chief Judge, held that defendants had failed to bring records
 within exemption provisions of the Act, save that they were entitled to
 withhold file and code numbers appearing on various documents, as well as names
 of public officials and a third party mentioned in one of the police
 documents.  On motion for reconsideration, the court held that although the Act
 permits agencies to delay responding to requests under "unusual circumstances,"
 the national bureau could not justify nondisclosure on fact that documents in
 the organization's office in France were not in "possession or control" of such
 bureau in America, there being no indication that it would be necessary to sue
 headquarters in France to retrieve the documents and where in fact some
 documents had already been retrieved from France in partial compliance with
 court's earlier orders.
  Defendants' motion for summary judgment granted in part, but disclosure
 otherwise ordered in accordance with opinion.

 [1] RECORDS
 There was no discernible legitimate public interest in file and code numbers
 appearing on various documents, and thus Freedom of Information Act exemption
 for matters related solely to internal personnel rules and practices of agency
 was applicable to such file and code numbers.  5 U.S.C.A. s 552(b)(2).

 [2] RECORDS
 Under Freedom of Information Act, to apply exemption for investigatory records
 compiled for law enforcement purposes that would constitute unwarranted
 invasion of personal privacy, court must assess interest in privacy and weigh
 it against any public interest in disclosure.  5 U.S.C.A. s 552(b)(7)(C).

 [3] RECORDS
 Where there appeared no public interest in revelation of names of government
 officials, in suit under Freedom of Information Act, exemption for
 investigatory records compiled for law enforcement purposes that would
 constitute an unwarranted invasion of personal privacy protected from
 disclosure names and personal identifiers of persons referred to in certain
 documents.  5 U.S.C.A. s 552(b)(7)(C).

 [4] RECORDS
 Under Freedom of Information Act, to qualify under exemption for identity of
 confidential source, defendants must show that documents involved are
 investigatory records compiled for law enforcement purposes, and where records
 were in possession of international police organization which served mainly as
 clearing house and relay center for information on crime and criminals for
 police forces in 130 member countries, and had no law enforcement powers,
 records qualified as records compiled to relay to other police entities "for
 law enforcement purposes."  5 U.S.C.A. s 552(b)(7)(D).
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [5] RECORDS
 Freedom of Information Act exemption for investigatory records compiled for law
 enforcement purposes to extent that production would disclose identity of
 confidential source does not allow for court balancing of competing
 interests.  5 U.S.C.A. s 552(b)(7)(D).

 [6] RECORDS
 In Freedom of Information Act exemption for investigatory records compiled for
 law enforcement purposes to extent that production would disclose identity of
 confidential source, "confidential source" applies to persons, and only
 persons, providing information under assurances of confidentiality, and not to
 law enforcement agencies.  5 U.S.C.A. s 552(b)(7)(D).
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [7] RECORDS
 In Freedom of Information Act case, defendants, claiming exemption for
 investigatory records compiled for law enforcement purposes to extent that
 production would disclose identity of confidential source and, in case of
 record compiled by criminal law enforcement authority in course of criminal
 investigation, confidential information furnished only by the confidential
 source, had burden of proving that information at issue was compiled in course
 of "actual, contemplated enforcement proceeding," and where defendants made no
 attempt to demonstrate same, and there was nothing in documents to lead court
 to believe that such demonstration was possible, assertion of such exclusion
 was denied in its entirety.  5 U.S.C.A. s 552(a)(4)(B), (b)(7)(D).

 [8] RECORDS
 For records to be exempt under exemption for investigatory records compiled for
 law enforcement forces to extent that production of such records would disclose
 identity of confidential source and, in case of record compiled by criminal law
 enforcement authority in course of criminal investigation, confidential
 information furnished only by the confidential source, documents must be both
 investigatory records compiled for law enforcement purposes and records
 compiled by criminal law enforcement authority in course of criminal
 investigation.  5 U.S.C.A. s 552(b)(7)(D).

 [9] RECORDS
 Although Freedom of Information Act permits agencies to delay respondent to
 requests under "unusual circumstances," national bureau of
 international police organization could not justify nondisclosure on fact that
 documents in such organization's office in France were not in "possession or
 control" of such bureau in America, there being no indication that it would be
 necessary to sue headquarters in France to retrieve the documents and where in
 fact some documents had already been retrieved from France in partial
 compliance with court's earlier orders.  5 U.S.C.A. s 552(a)(6)(A, B).
                          On Motion for Reconsideration
  *146 Robert A. Seefried, Seymour & Dudley, Washington, D. C., for
 plaintiff.
  Thomas R. Kline, Dept. of Justice, Washington, D. C., for defendants.
                              MEMORANDUM AND ORDER

  BRYANT, Chief Judge.
  The Founding Church of Scientology of Washington, D. C. brought this action
 against the Department of the Treasury, its Secretary and Deputy Assistant
 Secretary for Enforcement and Operations, and the United States National
 Central Bureau ("NCB") of the International Police Organization ("Interpol")
 and its chief, seeking the disclosure of certain records under the Freedom of
 Information Act (hereinafter "Act"), 5 U.S.C. s 552.
  After long and often unnecessary detours,[FN1] the case has culminated in a
 dispute over the defendants' assertion of three exemptions to some or all of
 thirty-seven documents.[FN2]  On January 28, 1980 at the court's request the
 defendants submitted the documents in dispute in camera to aid the court in
 resolving the remaining contentions of both parties.[FN3]

      FN1. As an earlier court noted about a different government agency, the
     defendants have responded to plaintiff's requests for information with
     glacial celerity.  For a discussion of these continental shifts, see infra
     at 149-150.

      FN2. The parties also disagree about the thoroughness of defendants'
     search of Interpol headquarters in France.  This will also be dealt with
     below, see 149-150, infra.

      FN3. The in camera inspection is expressly authorized by the Act.  5
     U.S.C. s 552(a)(4)(B) (1976).  See also Ray v. Turner, 587 F.2d 1187,
     1211 (D.C.Cir.1978) (concurrence of J. Skelly Wright, C. J.).

  The court premises its resolution of this dispute on both the basic structure
 of the Act and recent opinions by the United States Supreme Court regarding the
 purposes of the Act.  The Act is drafted in an unmistakable fashion.  All
 records held by agencies of the United States Government are covered by the Act
 unless they are specifically exempted by the nine subsections of s 552(b).
 Further, the burden is on the agency asserting the exemption to prove its
 applicability.  s 552(a)(4)(B).
  In a number of cases over the recent past the Supreme Court focused attention
 on the operation of this unusual Act.  As Justice Thurgood Marshall noted in
 1978, the Supreme Court has "repeatedly emphasized (that) 'the Act is broadly
 conceived,' EPA v. Mink, (410 U.S. 73, 80 (93 S.Ct. 827, 832, 35 L.Ed.2d
 119) (1973)) and (that) its 'basic policy' is in favor of disclosure,
 Department of Air Force v. Rose, (425 U.S. 352, 361 (96 S.Ct. 1592, 1599,
 98 L.Ed.2d 11) (1976))."  NLRB v. Robbins Tire & Rubber Co., 437 U.S.
 214, 220, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978).
  (1) With this in mind the court will consider the three exemptions at
 issue.  Defendants assert exemption s 552(b)(2) to withhold file and code
 numbers that appear on various documents.  Defendants' Motion for Summary
 judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment at
 10-13.  Section (b)(2) exempts matters "related solely to the internal
 personnel rules and practices of an agency."  The Supreme Court dealt with this
 exemption in a lengthy opinion in 1976.  Dept. of Air Force v. Rose, supra.
 In Rose the Court held that while exemption (b)(2) is not applicable to
 "matters subject to . . .  a genuine and significant public interest," the
 exemption does apply to "routine matters" of "merely internal significance" "in
 which the public could not reasonably be expected to have an interest."  425
 U.S. at 369-70, 96 *147 S.Ct. at 1603.  The court is unable to ascertain any
 legitimate public interest in the file and code numbers at issue and will
 therefore sustain the defendants' assertion of exemption (b)(2) as to documents
 2A, 3, 3A, 9, 10A, 13, 14, 15 and 19.  See, e. g., Nix v. United States, 572
 F.2d 998, 1005 (4th Cir. 1978); Maroscia v. Levi, 569 F.2d 1000, 1001-02
 (7th Cir. 1977).
  Next, the defendants assert exemption (b)(7)(C) to protect the names and the
 personal identifiers of persons referred to in certain documents.  Defendants'
 Motion for Summary Judgment and Opposition to Plaintiff's Motion for Partial
 Summary Judgment at 13-15.  Section (b)(7)(C) protects from disclosure portions
 of "investigatory records compiled for law enforcement purposes" that would
 "constitute an unwarranted invasion of personal privacy."
  (2, 3) In the present case the names and personal identifiers are, with a
 single exception,[FN4] of governmental officials.  To apply s (b)(7)(C) the
 court must assess the interest in privacy and weigh it against any public
 interest in disclosure.  Department of the Air Force v. Rose, 425 U.S. at
 372-73, 96 S.Ct. at 1604-1605; see also Retail Credit Co. v. FTC, 1976-1
 Trade Cases 68,124, 68,128 (D.D.C.1976) (Jones, C. J.), citing Getman v.
 NLRB, 450 F.2d 670, 674 (D.C.Cir.1971) (J. Skelly Wright, J.) Once again the
 court is unable to ascertain any public interest in the revelation of these
 names in this case.  As the court in Nix v. United States noted, in a matter
 arousing greater public interest, nondisclosure of these officials' identity
 might be overborne by the legitimate interest of the public.  572 F.2d 998,
 1006 (4th Cir. 1978), citing Deering Milliken, Inc. v. Irving, 548 F.2d
 1131, 1136-37 (4th Cir. 1977).  But see, Ferguson v. Kelly, 448 F.Supp. 919,
 924 (N.D.Ill.1978).  This ruling applies to both the names of public officials
 and the third party mentioned in one of the police documents.  Nix v. United
 States, 572 F.2d at 1006; Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977);
 Lamont v. Department of Justice, 475 F.Supp. 761, 777
 (S.D.N.Y.1979) (Weinfeld, J.).

      FN4. Document 19 contains the name of a third party under investigation by
     a police agency.

  The last exemption involved, (b)(7)(D), has been asserted by defendants for
 all thirty-seven documents in question.  Defendants' Motion for Summary
 Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment at
 15-19.  Section (b)(7)(D) protects "investigatory records compiled for law
 enforcement purposes, but only to the extent that the production of such
 records . . .  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."  The court will analyze the application of s (b)(7)(D) to
 this case in two parts, looking first at the question of disclosing the
 "identity of a confidential source" and, second, at the question of disclosing
 "confidential information furnished only by the confidential source."
  (4) In order to qualify under s (b)(7)(D) to withhold the identity of a
 confidential source the defendants must show that the documents involved are
 "investigatory records compiled for law enforcement purposes."  The records are
 in the possession of Interpol, which "serves mainly as a clearinghouse and
 relay center for information on crime and criminals for police forces in 130
 member countries," Affidavit of James B. Clawson at 4, and has no law
 enforcement powers.  Despite its lack of law enforcement authority, there can
 be no question that the records involved here were compiled by Interpol to
 relay to other police entities "for law enforcement purposes."
  But to successfully assert s (b)(7)(D) defendants must also show that the
 documents do, in fact, contain "confidential sources."  The defendants argue
 that the various police agencies who requested and received information from
 Interpol and relayed information to Interpol constitute "confidential
 sources."  Putting aside the rather obvious question of how an agency letter
 soliciting information can constitute a *148 confidential source, this
 raises the issue of whether police agencies can be confidential sources for the
 purposes of s (b)(7)(D).
  It is not clear from the face of the statute whether "confidential source"
 includes foreign, state and local law enforcement agencies.  The Supreme Court
 has directed that the courts turn to legislative history when confronted with
 such ambiguity.  Train v. Colorado Pub. Interest Research Group, 426 U.S. 1,
 9-10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976).  Whatever ambiguity lies in
 the statute must be forever dispelled by the rather lengthy legislative history
 on this point.  This court could not improve on the careful workmanship of
 Circuit Judge Wallace in a recent dissent and will therefore quote it at
 length:
   As originally proposed by Senator Hart, subsection (b)(7)(D) exempted "(i)
 nvestigatory records compiled for law enforcement purposes, but only to the
 extent that the production of such records would . . .  disclose the identity
 of an informer . . . ."  See House Comm. on Government Operations & Senate
 Comm. on the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act and
 Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and
 Other Documents 332 (Joint Comm. Print 1975) (hereinafter cited as Source
 Book).  At the time of his introduction of the amendment, Senator Hart stated:
   Fourth, the amendment protects without exception and without limitation the
 identity of informers.  It protects both the identity of informers and
 information which might reasonably be found to lead to such disclosure.  These
 may be paid informers or simply concerned citizens who give information to
 enforcement agencies and desire their identity to be kept confidential.
   Source Book, supra, at 333-34.  See also id, at 351 (Memorandum letter
 from Senator Hart).
   In response to President Ford's concerns, the Conference Committee
 substituted "confidential source" for "informer."  Id. at 367, 378, 450-51,
 459 (remarks of Senators Kennedy and Hart and Congressman Moorhead).  Its joint
 explanatory report, which "represents the considered and collective
 understanding of those (legislators) involved in drafting and studying proposed
 legislation," Zuber v. Allen, 396 U.S. 168, 186, (90 S.Ct. 314, 325, 24
 L.Ed.2d 345) (1969), said:
   The Substitution of the term "confidential source" in section 552(b)(7)(D)
 is to make clear that the identity of a person other than a paid informer may
 be protected if the person provided information under an express assurance of
 confidentiality or in circumstances from which such an assurance could be
 reasonably inferred.  Under this category, in every case where the
 investigatory records sought were compiled for law enforcement purposes either
 civil or criminal in nature the agency can withhold the names, addresses, and
 other information that would reveal the identity of a confidential source who
 furnished the information.
   H.R.Rep.No. 93-1380 & S.Rep.No. 93-1200, 93d Cong., 2d Sess., reprinted in
 (1974) U.S.Code Cong. & Ad.News 6285, 6291, and in Source Book at 230 (Emphasis
 added).
   My brethren disregard the clear language of this explanatory report by
 contending that the Conference Committee used "person" as a collective noun and
 that the expansive nature of their message precludes any restrictive reading
 of "confidential source."  Not only is it unlikely that the Committee was using
 the law dictionary definition of person, as my brethren contend, but even if
 they were, that definition of the term would not include foreign, state, and
 local law enforcement agencies.  See, e. g., 1 U.S.C. s 1.  The Committee's
 use of "person" in explaining the change from "informer" plainly reveals that
 their intent to protect only human sources had not changed.  Moreover, the
 majority's reliance on the expansive intent of the Committee report is
 misplaced.  General intent should not be used to controvert specific language;
 indeed, the Committee itself chose to express *149 its intent by the term
 "person."  (Church of Scientology of California v. United States Dept. of
 Justice, 612 F.2d 417 at 429-430 (9th Cir. 1979) (dissent) (footnote omitted).)
  (5) The court has chosen to rely on the dissent rather than the majority in
 the Church of Scientology of California case.[FN5]  Some courts, expressing
 concern over the public interest in cooperation between police authorities,
 have balanced competing interests in law enforcement and public disclosure to
 determine whether disclosure should be ordered.[FN6]  But unlike s (b)(7)(C),
 where a court must determine whether disclosure would invade privacy to such an
 extent that an exemption should be allowed,[FN7] s (b)(7)(D) does not allow for
 court balancing of competing interests.  Under s (b)(7)(D) the court must
 determine whether material contains "confidential sources."  To understand what
 Congress meant by "confidential sources" the court has resorted to the time-
 honored and court-tested procedure of examining the legislative history.  Once
 the legislative history produces an answer, a definition of "confidential
 sources," the court has only one further task: to apply that definition.  Once
 the Congressional intent is determined, the court may not balance interests to
 decide whether to act on that Congressional intent.

      FN5. The court's (and Judge Wallace's) reading of the legislative history
     is shared by District Judge Grady, Ferguson v. Kelley, 448 F.Supp. 919,
     925 (N.D.Ill.1978).  But see Nix v. United States, 572 F.2d 998, 1005
     (4th Cir. 1978); Lesar v. United States, 455 F.Supp. 921, 924
     (D.D.C.1978) (Gesell, D. J.).

      FN6. Lesar v. United States, 455 F.Supp. at 924; cf. Church of
     Scientology of California v. United States Dept. of Justice, 612 F.2d at
     427 (recognizing public interest in cooperation between police agencies);
     Nix v. United States, 572 F.2d at 1005 (same).  Although the concern for
     police cooperation is undoubtedly a very legitimate one, it is perhaps a
     concern that the judiciary should best convey in a private capacity.

      FN7. See 147, supra.

  (6) The court holds that the term "confidential source" applies to persons
 providing information under assurances of confidentiality and not to law
 enforcement agencies.
  (7) The court turns now to the question of whether production of these
 thirty-seven documents would reveal "confidential information furnished only by
 the confidential sources."  The defendants have made no attempt to present
 factual data substantiating the assertion that anything in these thirty-seven
 documents stems from individuals who are confidential sources as is required by
 s (b)(7) (D).  Even more telling, most of the information in the documents at
 issue concerns events long past, some more than thirty years past.  The Supreme
 Court held in NLRB v. Robbins Tire & Rubber Co. that the legislative history
 to s (b) (7) "suggests that the release of information in investigatory files
 prior to the completion of an actual, contemplated enforcement proceeding was
 precisely the kind of interference that Congress continued to want to protect
 against."  437 U.S. 214, 232, 98 S.Ct. 2311, 2322, 57 L.Ed.2d 159
 (1978) (emphasis added) quoted in Ray v. Turner, 587 F.2d 1187, 1222 n. 91
 (D.C.Cir.1978) (concurrence of J. Skelly Wright, C. J.).  Defendants have the
 burden of proving that the information at issue was compiled in the course of
 an "actual, contemplated enforcement proceeding."  The defendants have not made
 any attempt to demonstrate this and there is nothing in the documents to lead
 the court to believe that such a demonstration is possible.  Defendants'
 assertion of s (b) (7)(D) is therefore denied in its entirety.[FN8]

      FN8. Although defendants have not asserted a s (b)(7)(C) privacy exemption
     for the majority of these documents, the names, addresses and occasionally
     phone numbers of law enforcement personnel do appear in some of the
     documents.  In accordance with the court's ruling above, see 147, infra,
     the court will allow a s (b)(7)(C) exemption for any names, addresses and
     phone numbers of law enforcement officers appearing in these documents.
     By the same token, although the defendants have not asserted s (b)(2) for
     the majority of documents withheld on the basis of s (b)(7)(D) the court
     will allow a s (b)(2) exemption for any file and code numbers appearing in
     these documents.

  *150 Apart from the dispute over the exemptions, the parties are also in
 disagreement concerning the court's August 11, 1977 order for a search of
 Interpol headquarters in Paris, France.  This court order required the
 defendants to provide a Vaughn index of all "records maintained at Interpol
 that were compiled, received, or maintained by NCB."  The words "compiled,
 received and maintained" were used twice in the August 11, 1977 order.
 Memorandum Order at 3, 4.  But lest there be any doubt, the defendants filed
 for and the court entertained a Motion for Clarification of this order.  In the
 court's November 3, 1978 order denying defendant's Motion for Clarification the
 court once again repeated the terms "compiled, received or maintained."
 Despite all of the above, defendants requested Interpol to forward only those
 documents "created by and maintained by the Washington National Central Bureau
 of Interpol."  Memorandum in Response to Plaintiff's Motion Under Vaughn v.
 Rosen for New Index and for a Further Search for Documents at 2.  In addition,
 the defendants did not include in their request to Interpol's French
 headquarters documents relating to two of the search terms in plaintiff's
 initial request under the Act, "Scientology" and the "Church of Scientology."
 This too violates the court's orders of August 11, 1977 and November 3, 1978.
 Today the court orders the defendants yet again to comply with its original
 August 11, 1977 order.
  The above is but one example of the government's general practice in this case
 of engaging in dilatory tactics.[FN9]  It ill-behooves the United States
 Government to participate with such cunning creativity in what can only be seen
 as an attempt to frustrate the will of Congress in enacting the Freedom of
 Information Act and this court in enforcing it.  Accordingly, it is by the
 court this 17th day of April, 1980,

      FN9. Twenty-nine months after this court dismissed the government's first
     attempt at a Vaughn index as "conclusory," "accompanied by no factual
     support" and "utterly unsatisfactory in every respect," April 8, 1976
     Memorandum and Order at 2, the government produced a Vaughn index that
     suffered from most of the same ills.  September 10, 1979 Affidavit of
     Marydale Drury.  Despite the fact that the court told defendants in its
     April 8, 1976 Memorandum and Order that it would permit them "one last
     opportunity to represent the public interest" and present the detailed
     justifications required in a Vaughn index, the court has nevertheless
     accepted and considered the government's third attempt.  See Supplemental
     Affidavit of Marydale Drury (November 2, 1979).  Although an improvement,
     this document still lacks the factual support necessary to a Vaughn index
     and is also in flagrant disregard of the United States Court of Appeals for
     the District of Columbia's recent dictate that if the government is to
     issue successive indices covering the same material they must be
     cumulative.  Founding Church of Scientology of Washington, D.C. v. Bell,
     603 F.2d 945, 949 (1979) (per curiam).

  ORDERED, that defendants' Motion for Summary Judgment is granted as to all
 file and code numbers withheld under s 552(b)(2); [FN10]  and

      FN10. See n. 8, supra.

  FURTHER ORDERED, that defendants' Motion for Summary Judgment is granted as to
 all names, addresses and phone numbers of government officials withheld under
 s 552(b)(7)(C); [FN11]  and

      FN11. Id.

  FURTHER ORDERED, that plaintiff's Motion for Summary Judgment is granted as to
 all documents withheld under s 552(b)(7)(D); [FN12]  and

      FN12. Id.

  FURTHER ORDERED, that defendants shall provide plaintiff on or before May 7,
 1980 with a detailed justification, itemization, and indexing under 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), of those records maintained at Interpol, Paris,
 France that are responsive to plaintiff's Freedom of Information Act request
 and that were compiled, received, or maintained by NCB.
                          ON MOTION FOR RECONSIDERATION
  On April 17, 1980 this court granted summary judgment for the plaintiffs as to
 certain documents withheld by the United *151 States National Central
 Bureau ("NCB") of the International Police Organization.  The defendants
 responded with a motion for reconsideration and a motion for summary judgment
 as to newly identified, withheld documents in their possession.  This
 memorandum and order deals only with the defendants' motion for
 reconsideration.
  (8) The bulk of defendants' motion for reconsideration is nothing but a
 reargument of their original briefs and sheds no additional light on the
 controversy.[FN1]

      FN1. The defendants note an "ambiguity" in the court's memorandum and
     order.  Defendants' Motion for Reconsideration and for Summary Judgment at
     5.  On page four of the court's April 17, 1980 opinion this court stated
     that the records in dispute were compiled by NCB " 'for law enforcement
     purposes.' " On page eight of the same opinion this court held that
     defendants had not met the burden of "proving that the information at issue
     was compiled in the course of an 'actual, contemplated enforcement
     proceeding,' " quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
     232, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978).  There is, of course, no
     contradiction in these two holdings.  To be exempt under 5 U.S.C. s
     552(b)(7)(D) documents must be both "investigatory records compiled for law
     enforcement purposes" and "a record compiled by a criminal law enforcement
     authority in the course of a criminal investigation."  This court ruled in
     its April 17, 1980 memorandum and order that the defendants had met the
     former threshold, but since the records were not compiled in the course of
     an "actual, contemplated enforcement proceeding," the defendants had not
     met the latter threshold for exemption under s (b)(7)(D).

  (9) The defendants' lengthy motion for reconsideration does raise one point
 worthy of response.  On March 3, 1980 the United States Supreme Court handed
 down Kissinger v. Reporters Committee for Freedom of the Press, ---
 U.S. ----, 100 S.Ct. 960, 63 L.Ed.2d 267.  In the Kissinger opinion the Court
 found that an agency is not withholding documents under the Freedom of
 Information Act unless those documents are in the agency's possession or
 control.  Id. at ----, 100 S.Ct. at 968-71.  Defendants in the present case
 argue that the documents in Interpol's France office are not in their
 "possession or control."  Such a position can not be supported by the Kissinger
 opinion.  First, in Kissinger the Court repeatedly referred to the lack of any
 Congressional intent to impose on an agency the burden of suing to retrieve
 records from a third party.  There is no indication here that NCB would have to
 sue its Interpol, France headquarters to retrieve the documents.  Indeed, NCB
 has already retrieved documents from Interpol, France in partial compliance
 with the court's earlier orders.  Second, in discussing Congressional intent
 the Kissinger Court adverted to s 552(a)(6)(A) & (B).  Under this provision
 of the Act agencies may delay responding to requests under "unusual
 circumstances."  The Act defines "unusual circumstances" as "the need to search
 for and collect the requested records from field facilities and other
 establishments that are separate from the office processing the request."
 While the provision makes no reference to filing suit to retrieve documents, it
 does specify the need to "search for and collect the requested records from
 field facilities and other establishments."  This suggests that Congress
 expected agencies to search for their documents in affiliate offices.  Finally,
 to rule otherwise in a case such as this could result in virtually exempting
 the NCB from the operation of the Act.  NCB would simply have to transfer its
 records to its parent organization in France to avoid compliance entirely.
 Congress could not have intended such blatant evasion.  Accordingly, it is by
 the court this 13th day of May 1980,
  ORDERED, that defendants provide plaintiff immediately with a detailed
 justification, itemization, and indexing under 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), of all those records maintained at Interpol, Paris, France that are
 responsive to plaintiff's Freedom of Information Act request and that were
 compiled, received or maintained by NCB; and
  FURTHER ORDERED, that defendants provide plaintiff immediately with all
 documents withheld under s 552(b)(7)(D), except those documents withheld on
 privilege claims filed after this court's April 17, 1980 memorandum and order.

End of file...