CADC 79-12 The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC.,
Griffin B. BELL et al.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 3, 1979.
Decided June 25, 1979.
As Amended July 2, 1979.
In action under the Freedom of Information Act seeking records of the Federal
Bureau of Investigation pertaining to plaintiff church, related organizations,
and its founder, the United States District Court for the District of Columbia,
John Lewis Smith, Jr., J., granted summary judgment in favor of the FBI, and
plaintiff appealed. The Court of Appeals held that: (1) the FBI failed to
adequately discharge its obligation to provide index of material withheld or
deleted under the act; (2) "segregability" requirement of the Act applies to
the national security exemption contained therein, and thus the government must
segregate all material in classified documents that may be disclosed without
danger to national security; (3) the Federal Rules of Civil Procedure,
including rule under which court may issue a protective order sealing
documents, do not constitute a "statute" for purposes of Freedom of Information
Act exemption; and (4) district court must assure itself that nondisclosure of
internal agency documents satisfies the requirements of exemption for internal
advisory memoranda and attorney work products, and it is not sufficient to
find "substantial compliance" and fail to inquire further with respect to
specific documents withheld on ground that the government has manifested its
good faith by generous disclosure of intraagency memos.
Reversed and remanded.
The Federal Bureau of Investigation failed to adequately discharge its
obligation to provide index of material withheld or deleted under the Freedom
of Information Act, where the government cited five affidavits as constituting
its "index," different exemptions were claimed for the same documents in
different affidavits, only affidavit providing description of each document
claimed exemptions that were in many instances later altered, and there was
failure to correlate material deleted from released documents with the
exemption claimed as justification for nondisclosure. 5 U.S.C.A. s 552.
Indispensable elements of index of withheld or deleted material under the
Freedom of Information Act are that: (1) index should be contained in one
document, complete in itself; (2) index must adequately describe each withheld
document or deletion from a released document; and (3) index must state the
exemption claimed for each deletion or withheld document and explain why the
exemption is relevant, and explanation must be sufficiently specific to permit
a reasoned judgment as to whether the material is actually exempt, though it
need not be so detailed as to reveal that which the agency wishes to conceal.
5 U.S.C.A. s 552.
Legislative history of the Freedom of Information Act and the 1974 amendments
to it support a narrow construction of the exemptions to the rule of
disclosure. 5 U.S.C.A. s 552(b).
District court decisions in Freedom of Information Act cases must provide
statements of law that are both accurate and sufficiently detailed to establish
that careful de novo review prescribed by Congress has in fact taken place.
5 U.S.C.A. s 552.
"Segregability" requirement of the Freedom of Information Act applies to
the national security exemption contained therein, and thus the
government must segregate all material in classified documents that may be
disclosed without danger to national security. 5 U.S.C.A. s 552(b), (b)(1).
Court should accord substantial weight to an agency affidavit claiming
protection of national security exemption with respect to requested material
under the Freedom of Information Act. 5 U.S.C.A. s 552(b)(1).
National security exemption in the Freedom of Information Act was properly
invoked to protect the identity of FBI agents with sensitive assignments. 5
U.S.C.A. s 552(b)(1).
The Federal Rules of Civil Procedure, including rule under which court may
issue a protective order sealing documents, do not constitute a "statute"
for purposes of Freedom of Information Act exemption, but if concerns behind
protective order are still valid at the time of a later Freedom of Information
Act action, nondisclosure may be approved under the Act's substantive
exemptions. 5 U.S.C.A. s 552(b)(3), (b)(3)(A); 28 U.S.C.A. s 2072;
Fed.Rules Civ. Proc. rule 26(c), 28 U.S.C.A.
See publication Words and Phrases for other judicial constructions and
District court must assure itself that nondisclosure of internal agency
documents satisfies the requirements of Freedom of Information Act exemption
for internal advisory memoranda and attorney work products, and it is not
sufficient to find "substantial compliance" and fail to inquire further with
respect to specific documents withheld on ground that the government has
manifested its good faith by generous disclosure of intraagency memos. 5
U.S.C.A. s 552(b)(5).
*946 **364 Appeal from the United States District Court for the District
of Columbia (D.C. Civil Action No. 75-1577).
Earl C. Dudley, Jr., Washington, D. C., with whom Kenneth G. Starling,
Washington, D. C., was on brief, for appellant.
Joseph B. Scott, Atty., Dept. of Justice, Washington, D. C., for appellees.
Barbara Allen Babcock, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and
Leonard Schaitman and Emile L. Julian, Attys., Dept. of Justice, Washington, D.
C., were on brief for appellees.
Before WRIGHT, Chief Judge, and McGOWAN and ROBB, Circuit Judges.
Opinion for the court Per curiam.
In February 1975 appellant, the Founding Church of Scientology (Church),
submitted a request under the Freedom of Information Act (FOIA) [FN1] for all
records of the Federal Bureau of Investigation (FBI) pertaining to the Church,
its related organizations, and its founder, L. Ron Hubbard. Dissatisfied with
the FBI's response,[FN2] appellant filed this FOIA action in District Court
on September 26, 1975 to force disclosure of the Bureau's files.[FN3] The
Church now challenges *947 **365 the District Court's grant of summary
judgment in favor of the FBI.[FN4]
FN1. 5 U.S.C. s 552 (1976).
FN2. On July 22, 1975 the FBI released a few documents to the Church and
claimed that all other relevant material was exempt from disclosure under
FOIA. Joint Appendix (JA) 23-24 (letter from C. Kelley, Director of FBI, to
M. Lobel, July 22, 1975).
FN3. JA 9-14 (complaint). Appellant briefly pursued an administrative
appeal to the Attorney General, JA 25-29 (letter from M. Lobel to Attorney
General, Aug. 5, 1975), but initiated this suit before that appeal was
resolved. No problem of exhaustion of remedies arises here because under
5 U.S.C. s 552(a) (6)(C) (1976) such remedies are "deemed" to have been
exhausted if the agency does not release the requested documents within 30
days of the request.
FN4. JA 71-78 (Opinion and Order, Jan. 24, 1978).
Appellant argues that the Government did not provide a sufficiently detailed
and reasoned explanation of the grounds for withholding the documents sought
here, and that the District Court misapplied several provisions of the Act. We
agree. Part I of this opinion will consider the adequacy under Vaughn v.
Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), Cert. denied, 415 U.S.
977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), of the agency's response to
appellant's FOIA request, and Part II will examine several features of the
District Court's interpretation of the Act.
In Vaughn v. Rosen this court held that an agency's response to a FOIA
request must include an index of all material withheld in whole or in part. The
Vaughn index must explain specifically which of the nine statutory exemptions
to FOIA's general rule of disclosure supports the agency's decision to withhold
a requested document or to delete information from a released document.[FN5] We
have observed repeatedly that the Vaughn index is critical to effective
enforcement of FOIA.[FN6] Without such an index neither reviewing courts nor
individuals seeking agency records can evaluate an agency's response to a
request for government records.
FN5. For discussion of several FOIA exemptions and the general structure
of the Act, See Part II Infra.
FN6. See, e. g., Ray v. Turner, 190 U.S.App.D.C. 290, 294-295, 587 F.2d
1187, 1191-1192 (1978); Mead Data Central, Inc. v. United States Dep't
of Air Force, 184 U.S.App.D.C. 350, 359, 566 F.2d 242, 251 (1977);
Pacific Architects & Engineers, Inc. v. Renegotiation Board, 164
U.S.App.D.C. 276, 278, 505 F.2d 383, 385 (1974). When Congress amended the
Freedom of Information Act in 1974, the Senate Report specifically approved
of the index requirement in Vaughn. S.Rep.No. 93-854, 93d Cong., 2d
Sess. 15 (1974), Reprinted in Staffs of Senate Committee on the Judiciary
and House Committee on Government Operations, Freedom of Information Act
and Amendments of 1974 (Pub.L.No. 93-502): Sourcebook: Legislative History,
Texts, and Other Documents (Comm. Print 1975), at 169 (hereinafter cited as
The FBI's unsuccessful attempts to provide an adequate Vaughn index began
shortly after this suit was filed. In response to interrogatories FBI Agent
John E. Howard submitted an affidavit on January 30, 1976 (First Howard
Affidavit) with an attached exhibit that purported to describe eachdocument
covered by appellant's FOIA request and to give reasons for any nondisclosure.
[FN7] The Government filed two more affidavits when it moved for summary
judgment on May 5, 1976. One, prepared by Howard (Second Howard Affidavit),
included copies of all material released by the FBI,[FN8] while the other
supported Howard's claim that the Bureau was withholding information received
from security agencies of foreign nations (Bermingham Affidavit).[FN9] The
Second Howard Affidavit identified 324 documents in FBI files as relevant to
the Church's request, of which 244 were at least partly released. It divided
all the documents into seven categories and listed for each category the FOIA
exemptions that the FBI claimed for nondisclosure. Deletions in particular
documents were not correlated with the exemptions on which they were based, nor
were specific explanations offered for each withheld document. On June 10 the
District Court ruled that the Government had not met the requirements of
Vaughn v. Rosen and ordered that a new index be prepared.[FN10]
FN7. Exhibits, Vol. I, at 1-40.
FN8. Id. at 43-641.
FN9. Id. at 642-644.
FN10. JA 40-41.
The FBI on November 11, 1976 released some 60 additional documents and filed
yet another affidavit from Howard (Fourth Howard Affidavit).[FN11] For the
first time the Bureau provided a description of each document *948 **366
at issue, although in many instances particular deletions were still not linked
to the appropriate exemptions. The FBI also submitted an affidavit explaining
the need to invoke the national security exemption to FOIA with respect to
three documents (Poptanich Affidavit).[FN12]
FN11. Exhibits, Vol. II, at 1-490.
FN12. Id. at 508-509.
On May 5, 1977, while the case was pending before the District Court, the
Attorney General announced new guidelines for handling FOIA litigation. The
court then ordered the Government to reprocess appellant's request in
accordance with the new guidelines,[FN13] an undertaking that produced four
more affidavits from the FBI. Agent Donald Hoeting stated in an affidavit of
July 20, 1977 (First Hoeting Affidavit) that 605 pages of documents had been at
least partly released by the FBI,[FN14] and that 126 more would now become
available.[FN15] The newly released documents were listed in a submission to
the court on July 27, 1977 (Second Hoeting Affidavit).[FN16] Attached to
another affidavit prepared by Hoeting on September 13, 1977 (Third Hoeting
Affidavit) were copies of the 731 pages of documents that by then had been
provided in whole or in part.[FN17] After oral argument on the Government's
motion for summary judgment, the FBI submitted on October 17 a final affidavit
from Agent Martin Lindblom dealing with an additional 45 documents (Lindblom
Affidavit).[FN18] The District Court, noting that the FBI had released at least
portions of approximately three-quarters of the 1,100 pages of FBI records
relating to appellant's FOIA request, granted the Government summary judgment
motion on January 24, 1978.[FN19]
FN13. JA 6.
FN14. Exhibits, Vol. III, at 2.
FN15. The additional documents were released because the Government
abandoned most of its previous claims for nondisclosure under Exemption 2
of FOIA, 5 U.S.C. s 552(b)(2) (1976), which covers internal personnel
procedures. See JA 76.
FN16. Exhibits, Vol. III, at 54-58.
FN17. Id. at 59-807.
FN18. Id. at 808-809.
FN19. JA 71-78.
 According to the Government, if one simultaneously consults the Fourth
Howard Affidavit, the First and Third Hoeting Affidavits, and the Lindblom and
Poptanich Affidavits, one can divine the asserted justification for withholding
or deleting all material at issue here. Thus, the Government continues, the FBI
discharged its obligation to provide a Vaughn index. The Government is
A central purpose of the index requirement is to facilitate court review of
agency FOIA rulings by making clear the basis for the agency's refusal to
release certain information. The FBI's "index" in this case falls far short of
this goal of enhancing judicial economy. We have attempted to trace only some
of the 354 documents involved in this case, and have found the five affidavits
cited by the Government not merely unwieldly, but frequently confusing. For
many documents different exemptions are claimed in different affidavits.[FN20]
A plausible rule of interpretation would be to consider only the exemption
claimed in the last affidavit. Because of the numerous cross-references among
the affidavits, however, we cannot be certain that such a course is correct. In
addition, only the Fourth Howard Affidavit provides a brief description of each
document, but the exemptions *949 **367 claimed in that statement were in
many instances altered in later FBI affidavits. Thus the only descriptions of
the documents are tied to statutory exemptions that the agency may no longer
assert. Finally, for some documents the FBI offered insufficient justification
for withholding information under Any of the exemptions claimed.
FN20. For example, the Lindblom Affidavit claims Exemption 1, 5 U.S.C.
s 552(b) (1) (1976), to protect national security information in four
documents (K-17, K-18, K-23, K-27). Exhibits, Vol. III, at 811-813. The
First Hoeting Affidavit, however, asserts that those documents should be
withheld as internal advisory opinions (Exemption 5, 5 U.S.C. s
552(b)(5)) and to protect individual privacy (Exemption 6, 5 U.S.C. s
552(b)(6)). Exhibits, Vol. III, at 51-52. Yet the only description of the
four documents appears in the Fourth Howard Affidavit, which invokes
Exemption 2 (5 U.S.C. s 552(b)(2)), which covers internal personnel
information of no significance, and Exemption 1. Exhibits, Vol. II, at 417,
418, 429, 438.
The "index" presented here also fails to correlate material deleted from
released documents with the exemption claimed as justification for
nondisclosure. As we recently stated when confronted with a similar Vaughn
index, "The reviewing court should not be required to speculate on the precise
relationship between each exemption claim and the contents of the specific
document." [FN21] Yet the First Hoeting Affidavit, for example, asserts that
the six deletions in Document B-15 are based on three distinct exemptions,
[FN22] and that the eight deletions in Document A-76 are also based on three
exemptions.[FN23] A court cannot gauge the correctness of the agency's actions
without at least knowing the rationale for each deletion.
FN21. Ray v. Turner, supra note 6, 190 U.S.App.D.C. at 300, 587 F.2d
at 1197. See Schwartz v. Internal Revenue Service, 167 U.S.App.D.C. 301,
304, 511 F.2d 1303, 1306 (1975) (an agency must "correlate the theories of
exemption with the particular textual segments which it desire(s)
exempted"); Vaughn v. Rosen, 157 U.S.App.D.C. 340, 347, 484 F.2d 820,
827 (1973), Cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873
(1974) (need for "itemized explanation"); Mead Data Central, Inc. v.
United States Dep't of Air Force, supra note 6, 184 U.S.App.D.C. at 359,
566 F.2d at 251 (the agency "must provide a relatively detailed
justification, specifically identifying the reasons why a particular
exemption is relevant and correlating those claims with the particular part
of a withheld document to which they apply").
FN22. Exhibits, Vol. III, at 33, 628-629.
FN23. Id. at 12, 273-274.
 On remand the agency should concentrate on three indispensable elements
of a Vaughn index:
(1) The index should be contained in one document, complete in itself.
(2) The index must adequately describe each withheld document or deletion
from a released document.
(3) The index must state the exemption claimed for each deletion or withheld
document, and explain why the exemption is relevant. Of course the explanation
of the exemption claim and the descriptions of withheld material need not be so
detailed as to reveal that which the agency wishes to conceal, but they must be
sufficiently specific to permit a reasoned judgment as to whether the material
is actually exempt under FOIA.
These requirements do place an administrative burden on the agencies, but less
exacting standards would not satisfy the FOIA's unambiguous policy in favor of
the fullest possible disclosure of government records.
We also believe the District Court misinterpreted several substantive
provisions of the Act. Our remand must therefore include our view of the
questions of law involved here.
 The basic principles of the Act are well established. Government
files must be provided to the public on request unless there are compelling
reasons for nondisclosure.[FN24] Congress specified nine exemptions to this
rule of disclosure [FN25] and placed the burden on the Government to establish
the correctness of a claimed exemption in a trial De novo in District Court.
[FN26] The legislative history of the Act and the 1974
*950 **368 amendments to it support a narrow construction of the
exemptions.[FN27] Moreover, if only part of a document need be withheld under
an exemption, Congress has directed that the Government must segregate the
exempt passages and disclose the remainder. [FN28] Finally, District Court
decisions in FOIA cases must provide statements of law that are both accurate
and sufficiently detailed to establish that the careful De novo review
prescribed by Congress has in fact taken place.[FN29] We do not think that the
District Court's construction of several FOIA exemptions is consistent with
FN24. The affirmative obligation to disclose public records is outlined
in 5 U.S.C. s 552(a) (1976). See NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214, 221, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978) (unless the
requested material is within a statutory exemption, "FOIA requires that
records and material in the possession of federal agencies be made
available on demand to any member of the general public"); Vaughn v.
Rosen, supra note 21, 157 U.S.App.D.C. at 347, 484 F.2d at 823 (citing
FOIA's "overwhelming emphasis upon disclosure").
FN25. 5 U.S.C. s 552(b) (1976).
FN26. Id. s 552(a)(4)(B).
FN27. E. g., S.Rep.No. 813, 89th Cong., 1st Sess. 3 (1965); S.Rep.No. 93-
854, Supra note 6, at 1, 6 (1974), Source Book, Supra note 6, at 153,
158. See United States Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96
S.Ct. 1592, 48 L.Ed.2d 11 (1976). This court stated in Vaughn v. Rosen,
supra note 21, 157 U.S.App.D.C. at 347, 484 F.2d at 823, that the
exemptions "must be construed narrowly, in such a way as to provide the
maximum access consonant with the overall purpose of the Act." See Mead
Data Central, Inc. v. United States Dep't of Air Force, supra note 6,
184 U.S.App.D.C. at 367, 566 F.2d at 259 ("Where there is a balance to
be struck, Congress and the courts have stacked the scales in favor of
disclosure and against exemption."); Consumers Union of U. S. v.
Consumer Product Safety Com'n, 192 U.S.App.D.C. 93, 98, 590 F.2d 1209,
1214 (1978), Cert. granted, --- U.S. ----, 99 S.Ct. 2158, 60 L.Ed.2d
FN28. 5 U.S.C. s 552(b) (1976). See Vaughn v. Rosen, supra note 21,
157 U.S.App.D.C. at 345, 484 F.2d at 825 ("(T)he agency may not sweep a
document under a general allegation of exemption * * * . It is quite
possible that part of a document should be kept secret while part should be
disclosed."); Mead Data Central, Inc. v. United States Dep't of Air
Force, supra note 6, 184 U.S.App.D.C. at 318, 566 F.2d at 260 ("The
focus of FOIA is information, not documents, and an agency cannot justify
withholding an entire document simply by showing that it contains some
FN29. See Schwartz v. Internal Revenue Service, supra note 21, 167
U.S.App.D.C. at 304-305, 511 F.2d at 1306-1307; Ackerly v. Ley, 137
U.S.App.D.C. 133, 138-139, 420 F.2d 1336, 1341-1342 (1969).
 EXEMPTION 1 Three documents were withheld under this exemption on the
ground that they involve national security matters and have been "properly
classified pursuant to (Executive Order 11652)." [FN30] According to the
Poptanich Affidavit, the documents contain lists of FBI agents "responsible for
and engaging in authorized electronic surveillance." [FN31] Appellant does not
challenge this claim, but urges that the Government must disclose any
information in those documents that would not involve national security. The
District Court rejected this argument because "the entire document, not just
the sensitive portion, is classified * * *." [FN32] We think the District Court
FN30. 5 U.S.C. s 552(b)(1) (1976). See Poptanich Affidavit, Exhibits,
Vol. II, at 508-509 (citing Executive Order 11652, 8 Weekly Compilation
of Presidential Documents 545 (March 8, 1972)). For the text of Exemption 1
See note 34 Infra.
FN31. Exhibits, Vol. II, at 509.
FN32. JA 76.
This question turns on whether the "segregability" requirement of FOIA applies
to the national security exception in Exemption 1. The segregability provision
appears in Section 552(b), after all nine exemptions are listed:
Any reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt under
FN33. 5 U.S.C. s 552(b) (1976).
Nothing in this passage suggests that it applies to the other eight exemptions
but not to Exemption 1. Indeed, the first sentence of Section 552(b) refers
to nondisclosure of "matters" that are exempt, not to entire "documents" that
may be exempt. Moreover, the language of Exemption 1 itself provides no basis
for the claim that the segregability principle should not apply to it.[FN34]
FN34. In terms, Exemption 1 permits nondisclosure of matters that 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
5 U.S.C. s 552(b)(1) (1976).
*951 **369 The legislative history strongly supports our interpretation
of the statutory language. In the 1974 Amendments to FOIA Congress both revised
Exemption 1 and inserted the segregability provision.[FN35] In the original
Senate bill segregability applied only to "records otherwise exempt under
clauses (1) and (7) (Exemptions 1 and 7) of this subsection." [FN36] So the
initial proposal was to apply segregability to only two exemptions, Including
Exemption 1. The final legislation, according to the Senate Report, was
designed to "Apply the deletion principle to all exemptions." [FN37]
Consequently, we conclude that the Government must segregate all material in
classified documents that may be disclosed without danger to national security.
FN35. S.Rep. 93-854, Supra note 6, at 58, Source Book, Supra note 6,
FN36. Id. at 32, Source Book, Supra note 6, at 184.
FN37. Id. (emphasis added). Both the Supreme Court and this court have
ruled that the Senate Report is a reliable indicator of congressional
intent on the 1974 Amendments. United States Dep't of Air Force v. Rose,
supra note 27, 425 U.S. at 365-367, 96 S.Ct. 1592 (quoting Vaughn v.
Rosen, 173 U.S.App.D.C. 187, 193, 523 F.2d 1136, 1142 (1975)). Cf.
Jordan v. United States Dep't of Justice, 192 U.S.App.D.C. 144, 173-175,
591 F.2d 753, 782-784 (1978) (En banc ) (Leventhal, J., concurring); Id.
at 176-187, 591 F.2d at 785-796 (MacKinnon, J., dissenting).
FN38. Mead Data Central, Inc. v. United States Dep't of Air Force,
supra note 6, offers a useful discussion of how segregability should work
(I)f only ten percent of the material is non-exempt and it is interspersed
line-by-line throughout the document, an agency claim that it is not
reasonably segregable * * * might be accepted. On the other extreme, if a
large proportion of the information in a document is non-exempt, and it is
distributed in logically related groupings, the courts should require a
high standard of proof for an agency claim that the burden of separation
justifies nondisclosure or that disclosure of the non-exempt material would
indirectly reveal the exempt information. * * *
184 U.S.App.D.C. at 369, 566 F.2d at 261 (footnote omitted).
 It is important to note, however, that under the 1974 Amendments a
court should "accord substantial weight" to an agency affidavit claiming
Exemption 1's protection for requested material.[FN39] Although this
legislative instruction creates some tension with the court's duty in FOIA
cases to undertake De novo review, we believe that these potentially
conflicting obligations can be harmonized on a case-by-case basis. In this
litigation Exemption 1 was properly invoked to protect the identities of agents
with sensitive assignments. Nevertheless, the record is ambiguous as to whether
the documents contain other material that would not be exempt from disclosure.
[FN40] On remand the FBI should advise the District Court on this matter, and
if other segregable information is included in the three documents, the court
must weigh any additional claim of exemption by the Government.[FN41]
FN39. H.R.Rep.No. 93-1380, 93d Cong., 2d Sess. 10 (1974), Source Book,
Supra note 6, at 229.
FN40. The relevant portion of the Poptanich Affidavit states that each of
the three documents "contains a list of individuals assigned to our
Washington, D. C. Field Office, responsible for and engaging in authorized
electronic surveillance." Exhibits, Vol. II, at 509. The affidavit is
silent as to other contents of the documents.
FN41. If the Government's submissions are unconvincing, the District Court
may undertake In camera inspection of the documents under the 1974
Amendments. H.R.Rep.No. 93-1380, Supra note 39, at 10, Source Book,
Supra note 6, at 229. See Ray v. Turner, supra note 6, 190
U.S.App.D.C. at 309-317, 587 F.2d at 1206-1214 (Wright, C. J., concurring).
 EXEMPTION 3 The Government claimed this exemption, which covers
material "specifically exempted from disclosure" by other statutes,[FN42] for
three documents that were produced in another litigation. The trial court in
the other suit issued a protective order sealing those documents under Rule
26(c) of the Federal Rules of Civil Procedure.[FN43] We do not agree with
*952 **370 the implicit conclusion of the District Court that Rule
26(c) is a "statute" for the purposes of Exemption 3.
FN42. 5 U.S.C. s 552(b)(3) (1976).
FN43. Founding Church of Scientology v. Saxbe, D.D.C. Civil Action No. 74-
744 (Jan. 23, 1976). The documents include depositions of FBI agents that
have never been made public.
Exemption 3 is explicitly confined to material exempted from disclosure "by
statute," and the Federal Rules of Civil Procedure simply do not satisfy this
description. They are issued by the Supreme Court under rulemaking powers
delegated by Congress.[FN44] Although proposed rules may be rejected by
Congress, they are not affirmatively adopted by the legislature, as all
statutes must be.[FN45]
FN44. See 28 U.S.C. s 2072 (1976).
FN45. Id. See Walko Corp. v. Burger Chef Systems, 180 U.S.App.D.C.
306, 309 n.29, 554 F.2d 1165, 1168 n.29 (1977).
In addition, the rule's standards for issuing protective orders do not comport
with the criteria set forth in Exemption 3. The exemption, as amended,[FN46]
applies to statutes that:
FN46. Congress acted to restrict Exemption 3 in response to the Supreme
Court's expansive reading of it in FAA Administrator v. Robertson, 422
U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975). See H.R.Rep.No. 94-1441,
94th Cong., 2d Sess. 25 (1976) (Conference Report of Government in the
Sunshine Act, Pub.L.No. 94-409, s 5(b), 90 Stat. 1247 (1976)).
(A) require( ) that the matters be withheld from the public in such a manner
as to leave no discretion on the issue, or (B) establish( ) particular criteria
for withholding or refer( ) to particular matters to be withheld(.) ([FN47])
FN47. 5 U.S.C. s 552(b)(3) (1976).
Rule 26(c) authorizes the court to issue an order "which justice requires
to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense * * *." [FN48] Since the District Court has broad
discretion under the rule, nondisclosure of material under court seal could not
be based on subsection (A) of Exemption 3. In addition, we do not think that
the standards laid out in Rule 26(c) "annoyance, embarrassment, oppression,
or undue burden or expense" either establish "particular criteria for
withholding (information)" or refer to "particular types of matters to be
withheld," as required by subsection (B) of Exemption 3.
FN48. Fed.R.Civ.P. 26(c).
Finally, we believe that the interests guarded by protective orders are not
endangered by our refusal to approve automatic nondisclosure of such material
under Exemption 3. A Rule 26(c) order is issued to avoid injury in the
context of a particular suit between particular litigants. Whether such harm
will arise from disclosure of the material in a later FOIA suit is an entirely
different question from that which faced the court that issued the protective
order. Circumstances change, as may the interests of the parties involved in
the original litigation. If the concerns behind the protective order are still
valid at the time of the later FOIA action, nondisclosure may be approved under
the Act's substantive exemptions.[FN49] Consequently, we see no basis for
expanding Exemption 3 to cover Rule 26(c) orders as well as statutes.[FN50]
FN49. E.g., 5 U.S.C. s 552(b)(6) (1976) (personal privacy); Id. s
552(b)(7) (confidentiality needs of law enforcement agencies).
FN50. With respect to the particular documents involved in this issue, the
District Court on remand might consider whether they fall within the
definition of agency "records" under 5 U.S.C. s 552(a)(3) (1976).
 EXEMPTION 5 The FBI claimed this exemption, which applies to internal
advisory memoranda and attorney work-product, "approximately twenty-five
times." [FN51] The District Court upheld the FBI's use of the exemption in the
FN51. JA 77.
(T)he government's generous disclosure of intra-agency memos in File K
manifests its good faith. There is no reason for insistence that the defendants
further justify withholding the remainder guarded by Exemption 5. ([FN52])
*953 **371 The most likely interpretation of this holding is that the
District Court applied a sort of "substantial compliance" test and concluded
that, since the FBI had released many other intra-agency memoranda, the court
need not inquire further with respect to these 25 documents. We cannot endorse
such an approach to Exemption 5 questions or to FOIA issues in general. The
Government cannot discharge its duty under FOIA by releasing most of the
requested material. Exemption 5 directs that material in advisory opinions and
memoranda need not be disclosed unless it is factual rather than advisory, or
it concerns policies that have been adopted by the agency.[FN53] The District
Court in this case must assure itself that nondisclosure of the internal
documents satisfied the requirements of this exemption.[FN54]
FN53. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-152, 95 S.Ct.
1504, 44 L.Ed.2d 29 (1975); Mead Data Central, Inc. v. United States
Dep't of Air Force, supra note 6, 184 U.S.App.D.C. at 364, 566 F.2d at
256; Schwartz v. Internal Revenue Service, supra note 21, 167
U.S.App.D.C. at 303, 511 F.2d at 1305.
FN54. Appellant also argues that the District Court erred in not ordering
disclosure of documents in FBI files that were originally prepared by other
agencies. Under FOIA an agency may take ten extra days in responding to a
document request when it must consult with an originating agency on whether
a requested document should be released. 5 U.S.C. s 552(a)(6)(B) (1976).
But the agency that received the initial FOIA request retains
responsibility for producing the document. We do not disturb the District
Court's ruling on this point, however, because FOIA litigation has been
brought by appellant or organizations closely related to appellant against
the originating agencies involved here. Exhibits, Vol. I, at 44-45.
Consequently, the issues surrounding disclosure of material originating in
those agencies may be better resolved in the other suits. See Colorado
River Water Conservation District v. United States, 424 U.S. 800, 817, 96
S.Ct. 1236, 47 L.Ed.2d 483 (1976).
Accordingly, the order of the District Court is reversed and this case is
remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.