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 INTERNATIONAL, Plaintiff-Appellee,
                                       v.
          UNITED STATES INTERNAL REVENUE SERVICE, Defendant-Appellant.
                CHURCH OF SCIENTOLOGY INTL., Plaintiff-Appellee,
                                       v.
          UNITED STATES INTERNAL REVENUE SERVICE, Defendant-Appellant.
                   CHURCH OF SCIENTOLOGY, Plaintiff-Appellee,
                                       v.
          UNITED STATES INTERNAL REVENUE SERVICE, Defendant-Appellant.
                      Nos. 92-55817, 92-55828 and 92-55831.
                         United States Court of Appeals,
                                 Ninth Circuit.
                       Argued and Submitted April 8, 1993.
                              Decided June 9, 1993.
  Tax exempt organization brought suit challenging IRS's claims that undisclosed
 documents were exempt from disclosure under Freedom of Information Act (FOIA).
 The United States District Court for the Central District of California,
 Consuelo Bland Marshall, J., ordered disclosure of documents and IRS appealed.
 The Court of Appeals, Wiggins, Circuit Judge, held that:  (1) Exempt
 Organization Division of IRS had law enforcement function required under FOIA
 exemption for records compiled for law enforcement purposes;  (2) consent to
 release of handwritten documents by individual Internal Revenue agents did not
 mandate that documents be disclosed without weighing public interest;  and (3)
 order directing government to produce privileged documents was final appealable
 order.
  Reversed in part, and vacated in part, and remanded.

 [1] RECORDS
 When reviewing judgment or order under Freedom of Information Act (FOIA), Court
 of Appeals must determine whether district court had factual basis for its
 decision and reviews those decisions with adequate factual basis under clearly
 erroneous standard.  5 U.S.C.A. s 552.

 [2] RECORDS
 Federal Freedom of Information Act (FOIA) embodies strong federal policy in
 favor of full agency disclosure of government documents.  5 U.S.C.A. s 552.

 [3] RECORDS
 Exemptions under Federal Freedom of Information Act to full agency disclosure
 of government documents are limited and must be narrowly construed with doubts
 resolved in favor of disclosure.  5 U.S.C.A. s 552.

 [4] RECORDS
 Agency opposing disclosure of government documents bears burden of showing that
 requested documents are exempt from disclosure under Freedom of Information
 Act.  5 U.S.C.A. s 552.

 [5] RECORDS
 Exempt Organization Division of the IRS performed "law enforcement
 function," as required for exemption under Freedom of Information Act for
 records compiled for law enforcement purposes to apply;  division enforced
 provision of federal tax code relating to qualification for tax exempt
 status.  5 U.S.C.A. s 552(b)(7).
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [6] RECORDS
 When determining whether introduction of particular document would constitute
 unwarranted invasion of personal privacy, as needed for Freedom of Information
 Act exemption to apply, court must determine whether public interest in
 disclosure outweighs individual privacy interests that would suffer from
 disclosure.  5 U.S.C.A. s 552(b)(7)(C).

 [7] RECORDS
 Consent to disclosure of handwritten documents by individual internal revenue
 agents did not mandate release of documents compiled by Exempt Organization
 Division of IRS under Freedom of Information Act;  district court was obligated
 to determine public interest in disclosure and weigh that interest with
 individual privacy interests.  5 U.S.C.A. s 552(b)(7)(C).

 [7] RECORDS
 Consent to disclosure of handwritten documents by individual internal revenue
 agents did not mandate release of documents compiled by Exempt Organization
 Division of IRS under Freedom of Information Act;  district court was obligated
 to determine public interest in disclosure and weigh that interest with
 individual privacy interests.  5 U.S.C.A. s 552(b)(7)(C).

 [8] RECORDS
 Ruling that document to which attorney-client privilege applied was not exempt
 from disclosure under Freedom of Information Act was not a final appealable
 order required for appellate jurisdiction where party which possessed document
 was not ordered to produce document.  5 U.S.C.A. s 552(b)(5).
  *917 Jonathan S. Cohen, Gary R. Allen, Murray S. Horwitz, Asst. Attys.
 Gen., Washington, DC, for defendant-appellant.
  Kendrick L. Moxon, Bowles & Moxon, Hollywood, CA, for plaintiff-appellee.
  Appeal from the United States District Court for the Central District of
 California.

  Before:  HALL, WIGGINS, TROTT, Circuit Judges.

  WIGGINS, Circuit Judge:
  This case is a consolidation of three cases arising in the Central
 District of California.  In each case, the Church of Scientology International
 ("Church") requested that the Exempt Organization division ("EO") of the
 Internal Revenue Service ("IRS") disclose certain documents pursuant to the
 Freedom of Information Act ("FOIA"), 5 U.S.C. s 552 (1988).  The IRS
 responded to each request by disclosing some documents and claiming that others
 were exempt from disclosure under 5 U.S.C. s 552(b).  The Church challenged
 the IRS's exemption claims in district court, and the district court ordered
 the disclosure of hundreds of documents claimed to be exempt.  The IRS
 appeals.  The district court had jurisdiction pursuant to 5 U.S.C. s
 552(a)(4)(B) and 28 U.S.C. s 1331.  We have jurisdiction over this timely
 appeal pursuant *918 to 28 U.S.C. s 1291.  We reverse in part, vacate in
 part, and remand.
                                      FACTS
  This case deals with three separate requests by the Church for documents under
 the FOIA.  The facts surrounding each request are summarized below.
  Request No. 1
  On August 17, 1988, the Church submitted a FOIA request, seeking access to
 information about the Church and related entities Religious Technology Center
 ("RTC") and Church of Spiritual Technology ("CST") located in the Los Angeles
 Exempt Organization office from 1986 to "the present."  By letter dated August
 30, 1988, the IRS advised the Church that the request could not be processed
 because the Church had not submitted a valid taxpayer authorization for release
 of tax return information.  On September 9, 1988, the Church responded,
 supplying releases for itself, RTC, and CST.  A month later, the IRS informed
 the Church that its request had been sent to the National Office of Exempt
 Organizations in Washington, D.C., for processing.  Thereafter, the Church
 modified its request to include information contained in the national office.
  On April 17 and 20, 1989, the Church received form letter responses from the
 IRS, indicating that some or all of the records requested would not be
 released.  The Church filed an administrative appeal from the IRS's decision to
 withhold documents, but never received a response to its appeal from the IRS.
 After the statutory time for the IRS to answer had passed, the Church filed an
 action in the district court.
  The IRS disclosed 79 documents in full pursuant to the request.  The IRS also
 identified 16,000 other documents as responsive to the request, but took the
 position that these documents were exempt from disclosure.  On a motion for
 summary judgment, the district court ordered the release of all documents for
 which the IRS claimed an exemption under 5 U.S.C. s 552(b)(7) because the
 documents were not compiled for law enforcement purposes.
  Requests Nos. 2 and 3
  On September 16, 1990, the Church submitted a FOIA request for "a copy of all
 files ... relating to or concerning [the Church], maintained in a locked three
 drawer file cabinet under the control of Roderick Darling."  In another letter
 of the same date, the Church also requested "all files, records, documents,
 [and] notes ... relating to [the Church] maintained or temporarily residing in
 the office of Marvin Friedlander."
  The IRS disclosed an unspecified number of documents pursuant to these
 requests.  As before, the IRS claimed that other responsive documents were
 exempt from disclosure--the IRS withheld 219 pages of documents pursuant to the
 request made of Darling and 330 pages of documents pursuant to the request made
 of Friedlander.  After the time had run for the IRS to respond to the Church's
 requests, the Church filed actions in the district court.
  In both cases, the district court ruled that the EO had no law enforcement
 purpose and ordered the release of any documents compiled in connection with
 the Church's application for tax exempt status.  The district court determined
 that the EO had no law enforcement function and that therefore the documents
 were not compiled for law enforcement purposes.
  The court also ordered the IRS to produce documents containing the handwriting
 of seven named agents.  The IRS had claimed that the documents were exempt
 under 5 U.S.C. s 552(b)(7)(C).  The court concluded that the IRS could not
 withhold these records on privacy grounds because the individuals had indicated
 that they did not object to the Church having documents containing their
 handwriting.  The IRS appeals.
                               STANDARD OF REVIEW
  [1] Our review of a judgment or order under the FOIA is a two-part inquiry.
 First, we must determine whether the district court had an adequate factual
 basis for its decision.  Bowen v. FDA, 925 F.2d 1225, 1226-27 (9th
 Cir.1991);  Church of Scientology v. United States Dep't of the Army, 611
 F.2d 738, 742 (9th Cir.1979).  If an adequate factual basis *919 supports
 the district court's decision, we should review the decision under the clearly
 erroneous standard.  Bowen, 925 F.2d at 1227;  Church, 611 F.2d at 742.
                                   DISCUSSION
  [2][3][4] The FOIA embodies a strong federal policy in favor of full agency
 disclosure of government documents.  See John Doe Agency v. John Doe Corp.,
 493 U.S. 146, 151-52, 110 S.Ct. 471, 475, 107 L.Ed.2d 462 (1989);  Bowen,
 925 F.2d at 1226.  Any inquiry under the Act, then, begins with a "strong
 presumption in favor of disclosure."  United States Dep't of State v. Ray,
 502 U.S. 164, ----, 112 S.Ct. 541, 547, 116 L.Ed.2d 526 (1991).  Thus, while
 there are specific exemptions from disclosure set forth in the Act, these
 exemptions are limited and must be narrowly construed with doubts resolved in
 favor of disclosure.  John Doe, 493 U.S. at 152, 110 S.Ct. at 475;
 Federal Labor Relations Authority v. United States Dep't of the Navy, 958
 F.2d 1490, 1494 (9th Cir.1992).  The agency bears the burden of showing that
 requested documents are exempt from disclosure.  John Doe, 493 U.S. at 152,
 110 S.Ct. at 475;  Federal Labor Relations Authority, 958 F.2d at 1494;
 Bowen, 925 F.2d at 1226;  Lewis v. IRS, 823 F.2d 375, 378 (9th Cir.1987).
  I. Exemption 7--"compiled for law enforcement purposes"
  Section 552(b)(7) exempts from disclosure "records or information compiled
 for law enforcement purposes, but only to the extent that" disclosure will
 result in one of six enumerated harms.  In determining whether exemption 7
 applies, we must first decide whether the records requested by the Church were
 "compiled for law enforcement purposes."
  [5] This court has indicated that this determination requires "an
 examination of the agency itself to determine whether the agency may exercise a
 law enforcement function."  Church, 611 F.2d at 748.  The district court
 concluded that the EO has no law enforcement function and ruled, therefore,
 that the requested documents were not compiled for law enforcement purposes.
 We disagree.
  This court has clearly held that the IRS has the "requisite law enforcement
 mandate" to qualify as a law enforcement agency.  Lewis, 823 F.2d at 379.
 Moreover, we are convinced that the EO performs a law enforcement function by
 enforcing the provisions of the federal tax code that relate to qualification
 for tax exempt status.  This conclusion is consistent with Lewis and
 bolstered by the decision of the D.C. Circuit in Center for Nat'l Policy
 Review on Race & Urban Issues v. Weinberger, 502 F.2d 370 (D.C.Cir.1974).
 [FN1]  The Weinberger court "endorsed the view propounded in the legislative
 history that civil as well as criminal law enforcement activities are within
 the purview of the exemption."  Id. at 373 (footnote omitted).  The court
 stated:

      FN1. Weinberger was decided under an earlier version of the statute
     that we consider here.  We recognize that amendments to the statute have
     superceded portions of the Weinberger case.  See Local 30, United
     Slate, Tile, and Composition Roofers v. NLRB, 408 F.Supp. 520, 524 & n. 1
     (E.D.Pa.1976).  However, no amendments to the statute have affected the
     portion of the opinion construing the phrase "law enforcement purpose",
     which we find persuasive here.

   While an administrative determination of ineligibility for [a] governmental
 benefit is not attended by the same safeguards and procedures as a judicial
 determination in a criminal or civil proceeding, it is a governmental action
 that must be accompanied by due procedure.  We think it has the salient
 characteristics of "law enforcement" contemplated by the wording of exemption
 7....
   ... Where an agency, like HEW, has both voluntary compliance and formal
 determination functions ... the pertinent files are "compiled for law
 enforcement purposes."
  Id. (footnote omitted).
  The EO, like the agency in Weinberger, performs both voluntary compliance
 and formal determination functions.  Moreover, the EO's role in determining
 eligibility for the governmental benefit of tax exempt status also "has the
 salient characteristics of law enforcement."  See id.  Thus, we find the
 reasoning of Weinberger persuasive and its *920 application appropriate
 here.  We hold that Lewis and Weinberger compel the conclusion that the
 EO has the requisite law enforcement function for purposes of the statute.
 [FN2]  Accordingly, the district court's conclusion that the EO has no law
 enforcement purpose is clearly erroneous, and we reverse its order that the IRS
 disclose all documents or portions of documents protected only by an exemption
 7 claim or compiled in connection with an application for tax exempt status.
 We instruct the district court to determine whether the particular documents
 withheld were compiled for law enforcement purposes [FN3] and whether the
 government can establish that disclosure of the documents threatens one of the
 harms specified in 5 U.S.C. s 552(b)(7)(A-F).

      FN2. The Church would have us distinguish Lewis because it involved a
     document request from the IRS's criminal investigation division, a division
     whose law enforcement mandate is more obvious than that of the EO.  We have
     considered the distinction and expressly reject it on the strength of
     Weinberger's rationale.

      FN3. We point out that the documents need not have been gathered
     originally for law enforcement purposes.  The government must show only
     that the records and information had been compiled for law enforcement
     purposes "when the response to the FOIA request [was] made."  John Doe,
     493 U.S. at 155, 110 S.Ct. at 477;  see also id. at 155 n. 6, 110 S.Ct.
     at 477 n. 6 (suggesting that an agency cannot compile records for law
     enforcement purposes so as to avoid disclosure).  Thus with regard to the
     IRS's argument that the documents were incorporated into Church audit
     files, the district court must determine whether the government has borne
     its burden of establishing a compilation for law enforcement purposes.
     Id.

  II. Applicability of Exemption 7(C)
  The IRS also contends that the district court erred when it ordered the
 production of documents containing the handwriting of various IRS agents.  The
 IRS claims that the documents are exempt from disclosure under 5 U.S.C. s
 552(b)(7)(C).
  [6] Section 552(b)(7)(C) "permits the government to withhold
 documents and portions of documents 'compiled for law enforcement purposes, but
 only to the extent that the production of such records would ... constitute an
 unwarranted invasion of personal privacy.' "  Wiener v. FBI, 943 F.2d 972,
 983-84 (9th Cir.1991) (quoting 5 U.S.C. s 552(b)(7)(C) (1988)), cert.
 denied, 505 U.S. 1212, 112 S.Ct. 3013, 120 L.Ed.2d 886 (1992).  To determine
 whether production of a particular document would constitute an unwarranted
 invasion of personal privacy, a court must determine whether the public
 interest in disclosure outweighs the individual privacy interests that would
 suffer from disclosure.  See United States Dep't of Justice v. Reporters
 Comm. for Freedom of the Press, 489 U.S. 749, 762, 776, 109 S.Ct. 1468, 1476,
 1483, 103 L.Ed.2d 774 (1989);  Wiener, 943 F.2d at 984.
  The district court concluded that all documents compiled for law enforcement
 purposes and containing the handwriting of IRS agents should be exempt from
 disclosure because there existed "little public interest" in the disclosure of
 employee handwriting;  the history of antagonism between the parties justified
 protection of IRS employee identities;  and the IRS had no duty to alter
 information so as to make it discloseable. [FN4]

      FN4. The Church offered to pay to have the withheld documents typed so as
     to eliminate the risk of discovering agent identities through handwriting.

  Nonetheless, the court ordered the disclosure of any documents withheld under
 exemption 7(C) that contained the handwriting of seven named agents who had
 indicated in depositions that they did not object to the Church having samples
 of their handwriting.  The court concluded that the "IRS cannot assert an
 unwarranted invasion of privacy on behalf of individual employees who have no
 objection to the disclosure of their handwriting."  The court acknowledged that
 the named employees might have claimed a privacy interest "if they knew exactly
 what information would be revealed" but ordered the documents released because
 the IRS objected only to the release of the agents' handwriting and not the
 information in the documents.  We conclude that the district court erred by
 failing properly to determine whether the public interest in disclosure
 outweighed privacy concerns.
  *921 [7] First, we note that courts have long frowned upon the release of
 government compiled documents by individual consent.  See Rural Housing
 Alliance v. United States Dep't of Agric., 498 F.2d 73, 82-83, opinion
 supplemented by 511 F.2d 1347 (D.C.Cir.1974).  Second, we find the agents'
 alleged waivers of their privacy interests insufficient to compel disclosure.
 The agents did not consent to the release of any specific documents or set of
 documents.  Instead, they simply indicated that they did not object to the
 Church having documents containing their handwriting in the abstract.  Given
 our reluctance to compel the disclosure of government compiled documents on the
 basis of individual consent, we find the agents' deposition testimony alone an
 inadequate factual basis on which to conclude that the public interest in
 disclosure outweighed the privacy interests.  The agents' testimony may
 indicate that the privacy concerns here are not particularly weighty, but it
 does not relieve the court of its duty to balance the interests.  See
 Reporters Comm., 489 U.S. at 762, 776, 109 S.Ct. at 1476, 1483.
  Finally, the district court failed to address the public interest in
 disclosure of the documents containing the handwriting of the seven named
 agents.  Moreover, the court did not indicate the nature of any of the
 documents so as to permit us to evaluate the public interest in disclosure.
 Thus, it is impossible for us to determine whether the public interest
 outweighs the privacy concerns in this case as the law requires.  See
 Reporters Comm., 489 U.S. at 762, 776, 109 S.Ct. at 1476, 1483;  Wiener,
 943 F.2d at 984;  see also Nix v. United States, 572 F.2d 998, 1006 (4th
 Cir.1978) (holding that certain documents were exempt from disclosure even
 though the privacy rights implicated were minimal because the public interest
 in disclosure was even less).  This court has indicated that a " 'reviewing
 court should not be required to speculate on the precise relationship between
 each exemption claim and the contents of the specific document[s].' "
 Wiener, 943 F.2d at 988 (citation omitted).  However, that is exactly what
 we are being asked to do in this case.  Accordingly, we vacate the district
 court's order to disclose the documents containing the handwriting of the seven
 named agents and remand this matter with the instruction that the court apply
 the balancing test outlined above to the specific documents ordered produced.
 [FN5]  Only then will this court be able properly to review the district
 court's decision.

      FN5. We note that the district court need not apply the balancing test to
     each specific document if the court determines that the documents can be
     considered "categorically" rather than on an ad hoc basis.  See
     Reporters Comm., 489 U.S. at 776-79, 109 S.Ct. at 1483-85.

  III. Page 427
  [8] The IRS's final claim of error involves the district court's ruling that
 page 427 was not exempt from disclosure under the attorney-client privilege
 contained in exemption 5.  The IRS suggests, and the Church agrees, that this
 order is not presently appealable because the court did not order production of
 the document.  The court simply ruled in conjunction with deciding the motion
 for summary judgment that the document was not exempt from disclosure under
 exemption 5.  This court's decision in In re Steele, 799 F.2d 461, 464-65
 (9th Cir.1986), supports the parties' conclusion that the order is not
 appealable.  The Steele court held that a final decision in a FOIA case
 consists of " 'an order by the District Court requiring release of documents by
 the Government to the plaintiff, or order denying the plaintiff's right to such
 release.' "  Id. at 464 (quoting Green v. Dep't of Commerce, 618 F.2d
 836, 841 (D.C.Cir.1980)).  Because the district court never ordered the
 government to produce page 427, we conclude that there is no final appealable
 order as required for this court to exercise jurisdiction under 28 U.S.C. s
 1291.
  REVERSED in part, VACATED in part, and REMANDED.

End of file...