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)




    CHURCH OF SCIENTOLOGY OF CALIFORNIA, a non-profit corporation, Plaintiff-
                                   Appellant,
                                       v.
    UNITED STATES POSTAL SERVICE, Benjamin Bailer, Postmaster General, Postal
  Inspection Service, William J. Cotter, Chief Inspector, Defendants-Appellees.
                                  No. 76-1610.
                         United States Court of Appeals,
                                 Ninth Circuit.
                                 March 26, 1979.
  A church appealed from a summary judgment entered against it in the United
 States District Court for the Central District of California, Manuel L. Real,
 J., in its Freedom of Information Act suit against the Postal Service seeking
 release of records assertedly gathered during the course of law enforcement
 investigations of the church and its members.  The Court of Appeals, Ely,
 Circuit Judge, held that remand was necessary to permit the trial court to
 consider the effect of intervening amendments to the Freedom of Information
 Act.
  Reversed and remanded.

 FEDERAL COURTS
 In suit by church against Postal Service to obtain, under Freedom of
 Information Act, release to church of records assertedly gathered during course
 of law enforcement investigations of church and its members, remand to trial
 court was necessary to permit it to consider effect of intervening amendments
 to Freedom of Information Act affecting exemption of records specifically
 exempted by law.  5 U.S.C.A. ss 552, 552(a)(3), (b), (b)(3, 5-7),
 552b;  39 U.S.C.A. ss 101 et seq., 410(b)(1), (c)(6).
  *902 Barry L. Weissman (argued), Beverly Hills, Cal., for plaintiff-
 appellant.
  Leonard Schaitman of Dept. of Justice, Washington, D. C., Mark N. Mutterperl
 (argued), of Dept. of Justice, Washington, D. C., for defendants-appellees.
  Appeal from the United States District Court for the Central District of
 California.

  Before ELY and TRASK, Circuit Judges, and EAST,[FN*] District Judge.

      FN* Honorable William G. East, Senior District Judge, District of Oregon,
     sitting by designation.

  ELY, Circuit Judge:
  The Church of Scientology of California (the Church) appeals from a summary
 judgment entered against it and in favor of the United States Postal Service.
 The District Court upheld the refusal of the Postal Service to release to the
 Church a number of records assertedly gathered during the course of law
 enforcement investigations of the Church and its members.
                                     *903 I.
  The Church filed its Freedom of Information Act (FOIA) request [FN1] with the
 Postal Service seeking access to information compiled by the service relating
 to the Church, any of its affiliated organizations, or its founder, L. Ron
 Hubbard.  After conducting an extensive search of its files, the Postal Service
 released numerous documents to the requestor.  Not all the information in its
 files relating to the Church and its activities was disclosed, however.  A
 number of documents were withheld from disclosure as the alleged fruits of
 Postal Inspection Service investigations of possible criminal offenses.[FN2]

      FN1. The Postal Reorganization Act, 39 U.S.C. s 101 Et seq., extended
     the reach of the FOIA, 5 U.S.C. s 552, to the newly created Postal
     Service.  39 U.S.C. s 410(b)(1).  Pursuant thereto, the appellant
     requested that the Postal Service provide it with certain records, in
     accordance with 5 U.S.C. s 552(a)(3), which reads 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.

      FN2. The Postal Service also resisted disclosing an additional fourteen
     pages of materials, contending that release of the information would
     constitute a clearly unwarranted invasion of personal privacy within the
     meaning of 5 U.S.C. s 552(b)(6) (Exemption 6).  At oral argument, the
     Government's attorney represented to the panel that these materials would
     be turned over to the Church.  In reliance upon such representations, we
     hold that the questions raised by the withholding of these fourteen pages
     are moot; hence, we do not reach the Exemption 6 issue.

  When the refusal to disclose was challenged in the District Court, the Postal
 Service defended its withholding on the basis of Exemption 3 of the FOIA [FN3]
 and the investigatory file exemption of the Postal Reorganization Act, 39
 U.S.C. s 410(c)(6).[FN4]  After examining the requested materials In camera,
 the District Court adopted the Government's characterization of the records as
 having been compiled during law enforcement investigations.  The District Court
 also concluded that 39 U.S.C. s 410(c)(6) was a specific exempting statute
 of the sort described in FOIA Exemption 3; therefore, the Church's request for
 the Postal Service documents was denied.  Because it concluded that the Postal
 Reorganization Act's s 410(c)(6) specifically excluded Postal Service
 investigatory files from FOIA compelled disclosure, the District Court did not
 reach the Government's alternative grounds for nondisclosure based upon
 Exemptions 5 and 7.[FN5]

      FN3. At the time the District Court entered its judgment, Exemption 3
     excepted from the disclosure requirements of the FOIA any information
     "specifically exempted from disclosure by statute."  As discussed Infra,
     Exemption 3 was subsequently amended to read as follows:
     (b) This section does not apply to matters that are
     (3) 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 . . . .

      FN4. The investigatory files exemption claimed by the Postal Service,
     39 U.S.C. s 410(c)(6), reads as follows:
     (c) Subsection (b)(1) of this section 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.

      FN5. Exemptions 5 and 7 except from the disclosure requirements of the
     FOIA inter-agency or intra-agency memorandums and law enforcement
     investigatory files, respectively.  The exemptions read 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 . . . .

  *904 We remand to the District Court in order that it may consider the
 impact of recent amendments to the FOIA as well as pertinent legislative
 history.  Both shed light as to the manner in which the exemptions raised by
 the Government should be construed.
                                       II.
  Since the time of the challenged Order, filed December 19, 1975, Congress
 amended the FOIA [FN6] by qualifying Exemption 3 with conditions that a statute
 must satisfy if it is to be considered as one specifically exempting
 disclosure.  Thus, as amended, Exemption 3 now provides that an exempting
 statute must either (A) require that information in an agency's possession be
 withheld from the public in such a manner as to leave No discretion on the
 issue, or (B) establish particular criteria for withholding information or
 refer with particularity to the types of matters to be withheld.

      FN6. Government In The Sunshine Act, Pub.L. No. 94-409, enacted September
     13, 1976 and made effective 180 days thereafter.

  We have recently held that the amended version of FOIA Exemption 3 should
 govern the actions of a government agency, even though the amendment did not
 become effective until the time of an appeal already pending.  Lee
 Pharmaceuticals v. Kreps, 577 F.2d 610, 614 (9th Cir. 1978).  The legislative
 history to the amendment clearly evinces Congress' intention to overrule the
 Supreme Court's expansive interpretation given to the original version of
 Exemption 3 in Administrator, FAA v. Robertson, 422 U.S. 255, 95 S.Ct. 2140,
 45 L.Ed.2d 164 (1972).  Some of the more significant history reads:
   Believing that the decision misconceives the intent of exemption (3), the
 committee recommends that the exemption be amended to exempt only material
 Required to be withheld from the public by any statute establishing particular
 criteria or referring to particular types of information.
  H.R.Rep.No.94-880, 94th Cong. 2d Sess. (1976), reprinted in 3 U.S.Code Cong.
 and Admin.News, pp. 2183, 2205.  (Emphasis added.)
  The consideration of deference leads us to believe that the District Court
 should be allowed the first opportunity to consider whether 39 U.S.C. s
 410(c) (6) qualifies as an exempting statute within the meaning of 5 U.S.C.
 s 552(b) (3), as amended.[FN7]

      FN7. In the event the District Court finds that 39 U.S.C. s 410(c)(6)
     is a specific exempting statute of the kind referred to in Exemption 3 of
     the FOIA, as amended, then the District Court must also address the issue
     of whether the Postal Service has complied with its own regulation, found
     at 39 C.F.R. s 265.6(c).  General Services Administration v. Benson,
     415 F.2d 878, 880 (9th Cir. 1969) ("Regulations reasonably adapted to the
     administration of a congressional act, and not inconsistent with any
     statute, have 'the force and effect of law.' " (citations omitted).) The
     Government contends that the regulation invests the Postal Service with
     discretion either to release to or withhold from a requestor investigatory
     files.  See 39 C.F.R. s 265.6(c), which reads as follows:
     (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.
     The initial assumption found within the regulation, that law enforcement
     files of the Postal Service are unqualifiedly exempt from mandatory
     disclosure, is, of course, the very issue to be addressed by the District
     Court on remand.  As a matter of internal policy, the Postal Service has
     adopted, by means of this regulation, the investigatory records standards
     imposed upon most other governmental agencies by Exemption 7.  See note 5,
     Supra.  The Postal Service has argued that by including the word "normally"
     within the regulation, that the Postal Service has retained discretion to
     withhold requested information irrespective of whether one of the
     regulation's enumerated harms exists.  We question whether such an
     interpretation could be harmonized with Congress' expressed intent when it
     limited the scope of Exemption 3 of the FOIA by depriving agency
     administrators of discretion to disclose information under their control.
     See Lee Pharmaceuticals v. Kreps, supra, 577 F.2d at 615.  We suggest,
     as an alternative to the Government's interpretation, a reading of the
     regulation that would require the Postal Service to release investigatory
     files in the Normal case.  Thus, in accord with this alternative
     interpretation, only in the exceptional case when the Postal Service
     demonstrates the existence of one of the six enumerated dangers could the
     Postal Service justify a denial of a request for disclosure.
     In the event the District Court finds that 39 U.S.C. s 410(c)(6) did not
     survive as a specific statutory exemption following the amendment to
     Exemption 3 in 1976, the District Court nonetheless should consider whether
     the documents are properly withheld under Exemptions 5 and 7, the
     alternative grounds raised by the Postal Service in the District Court.

  REVERSED AND REMANDED.

End of file...