CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff,
William E. SIMON et al., Defendants.
Civ. A. No. 76-1719.
United States District Court, District of Columbia.
July 15, 1977.
Church, sued under Freedom of Information Act to obtain from Treasury
Department's office of the assistant secretary for enforcement, operations, and
tariff claims, Office of General Counsel, and the United States Secret Service
records in their possession pertaining to the church, its founders, and the
subject of scientology. On defendants' motion for summary judgment, the
District Court, John Lewis Smith, Jr., J., held that documents sought by
plaintiffs fell within the penumbra of agency's "executive" privilege
which exempts from FOIA the decision-making processes of government agencies.
Documents sought by church from Treasury Department's office of assistant
secretary for enforcement, operations, and tariff claims, Office of General
Counsel, and United States Secret Service, pertaining to church, its founder
and subject of scientology, came within penumbra of agency's executive
privilege which exempts from FOIA the decision-making processes of government
agencies. 5 U.S.C.A. s 552(b)(5).
*1108 Samuel H. Seymour, Robert A. Seefried, Walter G. Birkel, Jr.,
Washington, D. C., for plaintiff.
Carol Buehrens, Dept. of Justice, Washington, D. C., for defendants.
JOHN LEWIS SMITH, Jr., District Judge.
In this Freedom of Information Act case, the Church of Scientology of
California seeks from the Treasury Department's Office of the Assistant
Secretary for Enforcement, Operations, and Tariff Claims (EOTA), Office of
General Counsel, and the U.S. Secret Service records in their possession
pertaining to the Church, its founder L. Ron Hubbard, and the subject of
scientology in general. Defendants are the U.S. Treasury, the U.S. Secret
Service, the Secretary of the Treasury, and the Director of Secret Service.
The matter comes before the Court on defendants' Motion for Summary Judgment
and plaintiff's Motion to Compel.
Plaintiff's initial request for records was made to the Treasury Department
and its component agencies on December 19, 1974. By the time the complaint
instituting this action was filed, one hundred forty-five documents had been
identified to the request. Of these, ninety-six had been surrendered. The
remaining forty-nine were being withheld under the aegis of Exemption 5 to the
Act, 5 U.S.C. s 552(b)(5), which protects "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party . . . in
litigation with the agency". On April 19, 1977, plaintiff advised the
government that "in the spirit of reasonableness and compromise" it was
withdrawing its request to all but twenty of the documents. However, plaintiff
noted that the Secret Service had acknowledged in its answers to
interrogatories that it had not searched for the requested records through the
Treasury Enforcement Communications System (TECS). Plaintiff asked that such a
search be completed. [FN1] On May 13, the government turned over the complete
text of ten of the twenty, and the partial text of three more.
FN1. The Secret Service does not have terminal facilities allowing it
direct access to TECS and is not a user of the system. Consequently, any
request for records in the system should be directed to the Department of
Customs, which administers TECS.
Eight of the ten documents remaining in dispute are from EOTA. James
Featherstone, Deputy Assistant Secretary for EOTA, [FN2] describes them as
FN2. Referring to dictum in a 1952 Supreme Court decision that only the
head of an agency may invoke executive privilege, plaintiff urges that Mr.
Featherstone's affidavit is insufficient. See Reynolds v. United
States, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1952). See also, Carl
Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C.1966),
aff'd 128 U.S.App.D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952,
88 S.Ct. 334, 19 L.Ed.2d 361 (1967). That language is not pertinent here.
The courts have recognized several aspects to executive privilege. See, e.
g., Reynolds v. United States, supra; Environmental Protection Agency
v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Senate Select
Committee on Presidential Campaign Activities v. Nixon, 162 U.S.App.D.C.
183, 498 F.2d 725 (D.C.Cir.1975); Ethyl Corporation v. Environmental
Protection Agency, 478 F.2d 47 (4th Cir. 1973). In light of the many FOIA
cases filed each year, court adherence to the Reynolds dictum in cases not
dealing with the constitutional facet of the privilege would impose on
agency heads a tremendous burden. Reynolds does not require such a result,
and common sense prohibits it.
*1109 "1. One page memorandum dated February 20, 1975, from the Office of
the Assistant Secretary (EOTA) to the Chief of the U.S. National Central Bureau
of Interpol. It is an intra-agency memorandum discussing and expressing
opinions concerning Treasury appropriation hearings and Interpol and neither
makes reference to nor discusses plaintiff.
"2. Two page memorandum dated January 15, 1975, from an EOTA official to the
Assistant Secretary. It is an intra-agency memorandum discussing opinions and
setting forth EOTA staff recommendations concerning a Church of Scientology
Freedom of Information Act appeal to the Secret Service.
"3. One page memorandum dated February 10, 1975, from an EOTA official to the
Assistant Secretary. It is an intra-agency memorandum containing advice and a
recommendation regarding a Church of Scientology Freedom of Information Act
appeal to the Secret Service.
"4. Two and one-half pages of undated intra-agency notes containing
deliberative internal working papers of an EOTA attorney-official regarding
possible advice and recommendations to the Interpol Washington National Central
Bureau concerning a Church of Scientology Freedom of Information Act request.
"5. One and a quarter page memorandum dated October 1, 1974, from a staff
officer of EOTA to the Chief, Interpol Washington National Central Bureau. It
is an intra-agency memorandum consisting of advice and recommendations on
possible courses of action and to defend that Office against disparagement.
"6. Two page memorandum dated April 23, 1974 from an attorney-staff officer
of EOTA to the Chief, Interpol Washington National Central Bureau. The intra-
agency memorandum consists of advice and recommendations on possible courses of
action in internal policy and administrative matters.
"7. The majority of this document has been released. It is a three-page
intra-agency memorandum dated December 13, 1973, concerning a telephone
conversation with David A. Splitt, attorney for L. Ron Hubbard, concerning his
Freedom of Information Act request. The last two paragraphs of the memorandum
contain the staff member's advice, opinions and recommendations concerning the
request by Mr. Splitt and have been deleted.
"8. An intra-agency routing slip dated September 30, 1974, has been furnished
to the plaintiff. Deleted from that routing slip is a handwritten note by the
initiating officer which involved internal deliberations on possible courses of
action concerning a Freedom of Information Act appeal by the Church of
The other two documents are described in the affidavit of Hugo Ranta, [FN3]
Assistant General Counsel, from whose office they emanate.
FN3. See footnote 2, supra.
"1. One page memorandum of the file dated January 15, 1975. All but the
first two sentences of this memorandum have been deleted. The memorandum was
written by an attorney in the Office of the General Counsel and concerns the
response to a Freedom of Information Act request by the Church of Scientology
to the Secret Service. The memorandum contains opinions and advice as to the
response to the request.
"2. A Department of the Treasury internal buck slip dated August 29, 1974,
concerning an FOIA request from Joel Kreiner on behalf of the Church of
Scientology. The buck slip is from a Treasury Department official to an
attorney in the Office of the General Counsel and contains opinions and
requests legal advice as to the processing of the request."
Essentially, Exemption 5 protects "those documents, and only those documents,
normally privileged in the civil discovery context." NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29 (1975).
See EPA v. Mink, 410 U.S. 73, 93 *1110 S.Ct. 827, 35 L.Ed.2d 119 (1973).
As described in the affidavits, each of the ten documents fall within the
penumbra of the agency's "executive" privilege, which, as noted by the Supreme
Court in the Sears, Roebuck case, exempts from FOIA the "decisionmaking
processes of government agencies." 421 U.S. at 150, 95 S.Ct. 1504. Chief
Judge Bazelon has written that Exemption 5 "was intended to encourage the free
exchange of ideas during the process of deliberation and policy-making;
accordingly, it has been held to protect internal communications consisting of
advice, recommendations, opinions, and other material reflecting deliberative
or policy-making processes . . . ." Soucie v. David, 145 U.S.App.D.C. 144,
448 F.2d 1067, 1077 (1971). Release of the documents disputed here would
frustrate those objectives. Accordingly, summary judgment will be entered for