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.
         DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
                              Civ. A. No. 78-0107.
                          United States District Court,
                              District of Columbia.
                                  Jan. 8, 1985.
  Plaintiff brought action against the United States and various other public
 officers alleging that defendants had violated its constitutional and statutory
 rights.  The plaintiff filed a motion to compel discovery.  The District Court,
 Arthur L. Burnett, Sr., United States Magistrate, held that:  (1) the
 government properly invoked the attorney work-product privilege with respect to
 some documents and the plaintiff failed to meet his burden of overriding the
 privilege;  (2) those documents were also protected by the deliberative-process
 privilege;  and (3) the informant's privilege protected documents from
 disclosure.
  Motion to compel discovery denied.
  See also, 459 F.Supp 748.

 [1] FEDERAL CIVIL PROCEDURE
 Plaintiff was not entitled to production of Department of Justice Criminal
 Division file involving submission of applications to federal judges for
 electronic interceptions where plaintiff offered nothing beyond sheer
 conjecture or speculation that file would contain any information helpful to
 plaintiff or be likely to lead to admissible evidence.

 [2] FEDERAL CIVIL PROCEDURE
 Plaintiff's counsel was not entitled to participate in district court's in-
 camera examination of documents which were submitted by Criminal Division of
 Department of Justice which Criminal Division claimed were privileged and,
 thus, exempt from discovery.  Fed.Rules Civ.Proc.Rule 37, 28 U.S.C.A.

 [3] FEDERAL CIVIL PROCEDURE
 Attorney work-product doctrine was properly invoked to preclude discovery of
 documents generated by Department of Justice Criminal Division where index
 entries clearly showed that documents were prepared in connection with criminal
 process and in anticipation of litigation.  Fed.Rules Civ.Proc.Rule
 26(b)(3), 28 U.S.C.A.

 [4] FEDERAL CIVIL PROCEDURE
 Plaintiff failed to override Department of Justice Criminal Division's
 invocation of attorney work-product privilege to preclude discovery of
 documents generated by Division in connection with criminal process and in
 contemplation of litigation where documents were only marginally relevant to
 issues presented by plaintiff in its litigation.  Fed.Rules Civ.Proc.Rule
 26(b)(3), 28 U.S.C.A.

 [5] FEDERAL CIVIL PROCEDURE
 Representations by then-assistant Attorney General, when coupled with
 availability of documents which were subject of motion to compel discovery for
 in-camera examination, provided sufficient basis for required determination of
 validity of assertion of deliberative-process privilege, even though Attorney
 General himself did not invoke privilege.

 [6] FEDERAL CIVIL PROCEDURE
 Deliberative-process privilege against discovery was validly invoked in
 connection with documents involving deliberative process of government
 officials in criminal process, which was, at the time, predecisional as to
 prosecution and other law enforcement decisions.

 [7] FEDERAL CIVIL PROCEDURE
 Plaintiff failed to make sufficient showing to override government's claim of
 deliberative-process privilege concerning documents which were predecisional as
 to prosecution and other law enforcement decisions.

 [8] FEDERAL CIVIL PROCEDURE
 Informant's privilege not only protects identity of informant but documents
 which by their very nature would reveal confidential informant's identity.

 [9] FEDERAL CIVIL PROCEDURE
 Documents generated by Criminal Division of Department of Justice were not
 subject to discovery where individuals identified in those documents were
 informants whose identities should be protected.

 [10] FEDERAL CIVIL PROCEDURE
 Plaintiff failed to override Department of Justice Criminal Division's
 invocation of informant's privilege against discovery of documents.

  *460 William C. Walsh, Anthony Bisceglie, Jeffrey O'Toole, Washington,
 D.C., for plaintiff.
  Stuart Licht, Anne Gulyassy, Janet McClintock, John Toothman, Richard
 Greenberg, U.S. Dept. of Justice, Washington, D.C., for defendants.
                          MEMORANDUM OPINION AND ORDER

  ARTHUR L. BURNETT, Sr., United States Magistrate.
  Before the Magistrate is plaintiff's motion to compel discovery from the
 defendant Department of Justice as to its Criminal Division component.
 Specifically, on September 6, 1984 plaintiff, The Founding Church of
 Scientology of Washington, D.C., Inc., pursuant to Rule 37, Fed.R.Civ.P.,
 filed a motion to compel discovery requesting an order requiring the Criminal
 Division to conduct a proper search for relevant documents, to produce
 documents defendant has located but decline to produce, asserting privilege,
 and to answer certain of plaintiff's interrogatories.
  Some of the issues presented initially by the motion to compel have since been
 mooted by the defendant Department of Justice's subsequent actions.  For
 example, the Department of Justice has advised in its opposition filed October
 17, 1984 that the Criminal Division had consented to expand the scope of its
 search beyond the previously conducted FOIA searches, to include the records of
 the Internal Security Section, the Narcotics and Dangerous Drugs Section, the
 Organized Crime and Racketeering Section, the Brooklyn, N.Y., Miami and Tampa,
 Florida, and Los Angeles, California Strike Forces, the Office of Enforcement
 Operations, and the Office of International Affairs.  At the hearing before the
 Magistrate on November 29, 1984 counsel for the defendant represented that the
 Criminal Division had completed its search of all the offices in issue except
 the Office of International Affairs.  Counsel for the defendant represented
 that eight of the nine offices which plaintiff had requested *461 the
 Criminal Division to search had been completed and none had found any
 responsive documents.  As to the remaining office, the Office of International
 Affairs, counsel represented the search was then in process and assured that if
 any responsive records were found, counsel would notify plaintiff and also
 supplement the answers to relevant interrogatories.  (Tr. 79.) [FN1]

      FN1. In their reply also, counsel for the plaintiff indicated their
     satisfaction with the defendant's agreement to revise its search for
     documents and to supplement its interrogatories and that these matters no
     longer required an Order of the Court for resolution.

  Another issue, since mooted, involved plaintiff's motion to require the
 Criminal Division to furnish an accounting of documents and records it had
 returned in 1980 to the originating agencies in connection with FOIA requests.
 Plaintiff has contended that the defendant should be ordered to provide a
 specific accounting of documents referred to other agencies.  On this issue,
 the defendant responded in its opposition that the Criminal Division had
 referred the FOIA requests to the originating agencies for a direct response to
 the requestors.  At oral argument on November 29, 1984 counsel for the
 defendant represented that in 1979 and 1980 individual Scientologists made
 numerous Freedom of Information Act requests to the Criminal Division for
 documents, and in processing the requests the Criminal Division determined that
 it had documents that had been originated in fourteen (14) other governmental
 offices.  At that time, the Criminal Division referred those documents to the
 originating agencies or offices for their determination as to release.  Counsel
 further represented that on May 5, 1983 the Department of Justice sent a letter
 to counsel for the plaintiff advising of the identity of the fourteen (14)
 agencies or offices and including copies of all the documents that had been
 referred to ten (10) of those agencies or offices.  All of the documents for
 these ten (10) agencies or offices that had been referred out were provided to
 them at that time with the exception of one (1) Treasury Department document,
 for which the deliberative process privilege had been claimed in the FOIA
 release.  Counsel further represented that there were four (4) offices for
 which the processing had not then been completed, and assured the Magistrate--
   "And we agree that we will make an accounting for those four.  Those include
 the Civil Division of the Department of Justice, DEA, the Drug Enforcement
 Administration, the--those are the same agencies--the Executive Office for U.S.
 Attorneys, and the FBI.  The largest number of documents involved are FBI;
 there are 73.  I don't have a page count for the others, but it is not an
 inordinate amount of documents."  Tr. 83-84.
  In response to these representations, counsel for plaintiff stated that there
 might have been some confusion on this production and accounting for documents,
 stating, "I will endeavor to work this out.  I don't think it's something that
 we need an order on now."  Tr. 86.  The Magistrate thus concludes that this
 issue is now moot.
  Plaintiff also sought to compel production of a two (2) page letter, dated
 September 19, 1977, which was a response to a request for information regarding
 Internal Revenue Service electronic surveillance, which had been withheld on
 the basis of 26 U.S.C. s 6103 and the Privacy Act, 5 U.S.C. s 552a.
 Plaintiff urged that, at the very least, the defendant should disclose the name
 of the taxpayer to enable plaintiff to obtain a waiver for release of the
 information.  With its opposition, the defendant, having received a waiver from
 one of the individuals referred to in the letter, after redacting the names of
 the other individuals, produced a copy of the letter, including the
 individual's name for which there had been a waiver, and the complete text of
 the letter.  The defendant further observed that inasmuch as the letter merely
 confirmed that no electronic surveillance had been conducted on the listed
 individuals, the withheld names were not relevant.  The Magistrate agrees and
 concludes that the motion to compel as to this document is now moot.
  *462 Plaintiff also initially requested that the defendant be compelled to
 provide complete responses to supplemental interrogatories 1 and 2, asking
 respectively that the Criminal Division "identify all investigations of any
 nature initiated and/or participated in that involved plaintiff" and to
 identify "any investigation or intelligence gathering activities or programs
 not exclusively directed towards plaintiff ... that included the gathering of
 information about plaintiff."  In response, the Criminal Division had initially
 stated:
   "Inapplicable.  See Response by Defendant Director of the FBI to Plaintiff's
 Supplement to First Set of Interrogatories to Defendants."
  Defendant, in its opposition filed October 17, 1984, represented that it would
 file a further answer to these two interrogatories, stating
   "Because the Criminal Division response is the same as the response of the
 FBI, it will prepare a supplement to its responses to Plaintiffs' Supplement to
 First Set of Interrogatories to Defendants, containing language found in the
 responses of the Director of the FBI." [FN2]

      FN2. The Magistrate will require, based on this assurance, that the
     supplemental answers be filed promptly after the filing of this Memorandum
     Opinion and Order.

  Finally, it is noted that the parties may have reached an accommodation on one
 additional discovery issue.  Plaintiff requested that the Criminal Division be
 ordered to conduct a search of the file, Justice/CRM-006, "Information File on
 Individuals and Commercial Entities Known or Suspected of Being Involved in
 Fraudulent Activities" and Justice/CRM-019, "Requests to the Attorney General
 for Approval of Applications to Federal Judges for Electronic Interceptions."
 In support of this request counsel for the plaintiff asserted:
   "A search of these files is sought because it cannot be determined from the
 declaration of Mr. Wood [Douglas S. Wood, Legal Support Services Attorney for
 the Criminal Division] that these systems were examined and because the
 contents of these systems may yield information probative of plaintiff's claims
 that the defendant has created an incorrect characterization of the plaintiff
 as a fraudulent organization and has subjected its members to unlawful
 electronic surveillance."
  With reference to the Justice/CRM-006 file, the defendant in its opposition
 stated that the Fraud Section had advised that the entire system had been
 lost.  Counsel represented that an exhaustive search for it had been conducted
 without success and that they were advised that the system was probably lost
 during a reorganization of that Section in 1978.  At the hearing on November
 29, 1984 counsel further advised that there was no custodian of the file, which
 was one of the files maintained by the Office of Enforcement Operations, and
 which was either lost or discarded during a reorganization of that office in
 1978.  Counsel then further advised that to assist the Court, they would be
 willing to provide an affidavit from the responsible person in the Criminal
 Division describing as best they could what happened to that file, with as much
 information as available.  The Magistrate interprets this commitment to include
 a description of the contents of that file to the extent anyone has a
 recollection thereof, whether the materials therein were copies of documents or
 records preserved in other files, whether the materials in that file were
 cross-referenced to another file, and the identity of any government officers
 or employees who have firsthand knowledge of the contents thereof and whether
 the file contained any information on the plaintiff or other churches and
 missions of Scientology.  Such an affidavit would lay this issue to rest.  The
 Magistrate thus concludes that the Criminal Division through a responsible
 official shall furnish such an affidavit or declaration within ten (10) days
 hereof.
  [1] With reference to the Justice/CRM-019 file, counsel did not further
 pursue this issue in their memoranda or at the hearing.  The Magistrate
 concludes that since this file involved the submission of applications
 *463 to Federal judges for electronic interceptions, it is highly improbable
 that it would contain information relevant to the allegations made by the
 plaintiff in this case or reflect illegal activity or governmental misconduct.
 Furthermore, plaintiff has proferred nothing beyond sheer conjecture or
 speculation that this file would contain any information helpful to the
 plaintiff in this case or likely to lead to admissible evidence. [FN3]  Thus,
 this aspect of plaintiff's motion to compel shall be denied.

      FN3. Should plaintiff be able to present any specific factual information
     that this file contains any information relevant to the issues in this case
     or likely to lead to admissible evidence, it may file a motion to
     reconsider as to this issue, with such additional showing as it can then
     make.

  This brings us to the most difficult and complex aspects of the motion to
 compel, i.e. the validity of the defendant's invocation of the attorney work
 product doctrine or privilege, the deliberative process privilege, and the
 informant's privilege.  As to some of these documents, and redacted portions
 thereof, more than one privilege has been claimed by the defendant.  Certain
 documents, the defendant claims, are protected from disclosure on more than one
 ground.
  In general, plaintiff has asserted that the declarations of the officials
 invoking the privilege are too conclusory and general, the indices do not give
 sufficient detailed information and description pertaining to the documents to
 support the privilege claimed, that the procedures for invoking the privilege
 have not been properly followed, and that since allegations of government
 misconduct are involved and the factual issues in the case are complex, counsel
 for the plaintiff should be allowed to participate in the Magistrate's in
 camera examination of the documents, which have already been submitted by the
 Criminal Division.  Plaintiff has urged that counsel's participation would
 sharpen the focus of the examination and advance the fulfillment of the
 adversary system, and that since each of these are qualified privileges,
 counsel could assist the Magistrate in assessing plaintiff's need for the
 information versus the defendant's claim to keep the information confidential
 and protected from disclosure.
  [2] The Magistrate, at this stage, rejects plaintiff's request for
 participation in the in camera process.  The Magistrate is of the view that
 where privilege is asserted, the least intrusive means reasonably necessary to
 determine the validity of the claim should be followed.  Counsel's
 participation should only occur after less intrusive methods have proved
 unworkable.  Black v. Sheraton Corp. of America, 564 F.2d 531, 545
 (D.C.Cir.1977).  Cf. Arieff v. U.S. Department of Navy, 712 F.2d 1462, 1469-
 70 (D.C.Cir.1983).  Further, this Magistrate has had substantial involvement in
 this litigation in resolving numerous prior discovery disputes and thus fully
 appreciates the factual and legal issues involved in this case.  Thus, this
 Magistrate is of the view that he can capably evaluate the applicability of the
 privileges by the traditional approach to an in camera examination.  If, after
 that examination, there are unresolved questions, the Magistrate has the power
 to require a further declaration or affidavit and more detailed elaboration of
 the grounds for the asserted privilege in an appropriate supplemental index.
 Within the framework of these principles, we now turn to the question of the
 validity of each of the asserted privileges, the general principles applicable
 thereto, and the results of this Magistrate's in camera examination of the
 documents at issue.
                       The Attorney Work Product Doctrine
  Plaintiff has asserted that the defendant has withheld portions of forty-four
 (44) documents on the basis of the work product privilege and that its claims
 are inadequate.  Plaintiff asserts that the declaration of then Assistant
 Attorney General D. Lowell Jensen provided no indication of what litigation was
 involved or even what the general subject matter of the documents entailed, and
 that the index furnished shed no further light on the propriety of the claims.
 *464 Plaintiff further asserts that the index was strikingly similar to the
 one found to be deficient in Coastal States Gas Corporation v. Department of
 Energy, 617 F.2d 854 (D.C.Cir.1980).  Plaintiff concludes that because the work
 product privilege is limited to documents prepared in contemplation of
 litigation, citing Jordan v. U.S. Department of Justice, 591 F.2d 753, 775
 (D.C.Cir.1978) (en banc), the defendant should at least be required to provide
 further information as to exactly what litigation was contemplated.
  Defendant has responded that plaintiff has cited no authority for its novel
 interpretation of the work product doctrine to require the party invoking the
 doctrine to provide further information as to exactly what litigation was
 contemplated.  Defendant further asserts that the index entries clearly show
 that the documents in issue were prepared in connection with the criminal
 process and in anticipation of litigation.  Defendant asserts that the
 plaintiff has failed to make the requisite showing, as set forth in Rule
 26(b)(3) and Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66
 L.Ed.2d 584 (1981), necessary to override the privilege.  The Magistrate agrees
 after a reading of each and every page of each document for which the defendant
 has invoked the attorney work product doctrine.
  [3] In the volume submitted for in camera examination, the Magistrate has
 read word for word each of the documents under a total of seventy-one (71)
 tabs, some of the documents being several pages.  The Magistrate is completely
 satisfied from this review that the attorney work product doctrine has been
 properly invoked.  Even were the index description inadequate, the availability
 of the documents for review by the Magistrate would cure any deficiency in the
 declaration and index description.  This is sufficient to distinguish
 Coastal States Gas Corporation, a case dealing with the adequacy of the
 Vaughn index in a FOIA context. [FN4]  It would be an unwarranted imposition
 upon counsel and the litigants they represent to require a further detailed
 supplemental index when it is clear from an examination of the documents
 themselves in an in camera examination that they, or the portions thereof
 withheld, are entitled to the protection of the work product doctrine.

      FN4. Further, in that case, in lieu of in camera inspection, the
     Department of Energy had submitted an index of the withheld documents,
     along with affidavits from regional counsel in support of its decision not
     to release the memoranda.  It was in this context that the Court found
     fault with the conclusory assertions of privilege as not sufficient to
     carry the Government's burden of proof in defending FOIA cases.

  [4] Furthermore, the Magistrate's review of these documents indicates that
 they are only marginally relevant to the issues presented by the plaintiff in
 this litigation, if at all.  The content thereof would not be of significant
 help to the plaintiff on the issues presented.  Thus, in balancing plaintiff's
 need for these documents against the defendant's interest in protecting the
 documents under the work product privilege, the Magistrate concludes that the
 scale weighs heavily in favor of the defendant.  Therefore, the motion to
 compel as to documents, or portions thereof, for which the defendant has
 invoked work product protection shall be denied.
                       The Deliberative Process Privilege
  In the recent case, Northrop Corporation v. McDonnell Douglas Corporation,
 751 F.2d 395, p. 405, fn. 11, (D.C.Cir., 1984), a panel of our Court of Appeals
 stated:
   "Assertion of the deliberative process privilege, like the state secrets
 privilege, requires a formal claim of privilege by the head of the department
 with control over the information.  That formal claim must include a
 description of the documents involved, a statement by the department head that
 she has reviewed the documents involved, and an assessment of the consequences
 of disclosure of the information.  Garber v. United States, 73 F.R.D. 364
 (D.D.C.1976), aff'd. on other grounds, 578 F.2d 414 (D.C.Cir.1978).  See
 also Carl Zeiss [Stiftung v. E.B. *465 Carl Zeiss ], 40 F.R.D. 318;
 Wright & Miller s 2019.  As with the state secrets privilege, State's claim of
 this privilege also fails on this procedural requirement."
  In this case Assistant Attorney General D. Lowell Jensen stated in his
 Declaration:
   "I have personally reviewed each document, and, for the reasons set out
 below, it is my opinion as Assistant Attorney General that each document is
 privileged from disclosure."  (Paragraph 3.)
  With reference to the deliberative process privilege, in Paragraph 5,
 Assistant Attorney General Jensen represented that each of the documents for
 which this privilege was being asserted was an internal Department of Justice
 communication reflecting advisory opinions, recommendations and deliberations
 which comprise an integral part of the process by which the Criminal Division's
 decisions and policies are formulated.  For a seminal case setting forth the
 philosophy and underpinnings of this deliberative process privilege, also
 referred to as executive privilege, see, Kaiser Aluminum & Chemical Corp. v.
 United States, 157 F.Supp. 939, 141 Ct.Cl. 38 (1958) (Mr. Justice Reed,
 Retired, sitting by designation, for the Court).  He further stated in his
 Declaration:
   "Disclosure of these documents could be expected to inhibit the candid
 exchange of ideas between persons in the Criminal Division responsible for
 formulating the legal and factual basis upon which our decisional and policy
 making functions depend and would also impair frank expression and discussion
 among those upon whom rests the responsibility for making the determinations
 that enable the Criminal Division to operate."
  [5] The quoted footnote from Northrop Corporation, supra, raises the
 question of whether the Attorney General himself must examine the documents for
 which the deliberative process privilege is being asserted, or whether the
 Criminal Division should be treated as a "department" for purposes of the
 principle enunciated therein.  Of course, there is also another alternative--
 that is--the footnote may have overstated the need for the head of the
 department to review all deliberative process privilege material.  It may be
 that where deliberative process privilege material also involves assertion of
 the executive privilege for highly sensitive policy making material, scrutiny
 by the head of the department may be required, but it can hardly be intended
 that deliberative process material generated at the working attorney staff
 level or by mid-level managers or administrators must be reviewed by the head
 of a department or agency.  Such a requirement would be an unwarranted
 imposition on the time of the heads of departments and agencies, who need to be
 free to devote their time to major policy issues and the management of their
 departments and agencies.  Thus, this Magistrate is of the view that the
 principles enunciated in United States Department of Energy v. Brett, 659
 F.2d 154, 155 (TECA 1981), cert. denied, 456 U.S. 936, 102 S.Ct. 1992, 72
 L.Ed.2d 456 (1982), should be followed instead.  There the appellate court held
 that the district court erred in ruling that the deliberative process privilege
 may be asserted only by the head of the agency, stating that United States
 v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), relied on by the
 district court, was inapposite, observing that Reynolds dealt with an
 absolute privilege for state secrets, not the deliberative process privilege.
  Further, the Brett court observed that where a department or agency is
 willing to submit the documents at issue to the court for in camera
 examination, an affidavit or testimony from a responsible official of the
 department or agency "was unnecessary to assert the privilege effectively."
 [FN5]  659 F.2d at 155.  It is also significant to observe that in Black
 v. Sheraton Corporation *466 of America, 564 F.2d 531 (D.C.Cir.1977), in the
 context of a claim of executive privilege, the Court of Appeals for the
 District of Columbia stated:

      FN5. The Brett court further observed:  "The rationale for the
     deliberative process privilege is its supposed avoidance of chilling
     effects on decision making.  That goal is not furthered and could in fact
     be hindered by a requirement that the privilege be asserted in all cases by
     agency heads."  659 F.2d at 156.

   "Since the district court would be able to examine the actual documents, it
 did not need an affidavit of the same degree of specificity as in a case where
 it was relying on the affidavit to decide whether valid grounds existed for
 assertion of the privilege nor did the district court need the personal
 assurance of the department head as to the proper classification of each
 document...."  564 F.2d at 543.  (Emphasis added.)
  The Magistrate notes that the panel in Northrop Corporation, supra, in its
 footnote 11, did not make reference to Black, nor to the qualification set
 forth in the quoted language above.
  The Magistrate is of the view that Brett and Black provide the sounder
 approach for dealing with the deliberative process privilege.  The Magistrate
 concludes that the representations by then Assistant Attorney General D. Lowell
 Jensen, when coupled with the availability of the documents themselves for in
 camera examination, provide a sufficient basis for the required determination
 of the validity of the assertion of the privilege in this case.  Accord, In
 Re Agent Orange Product Liability Litigation, 97 F.R.D. 427, 429-30, 434-35
 (S.D.N.Y.1983).  See also Salzburg and Redden, Federal Rules of Evidence Manual
 3d Ed. at 799, comments to Proposed Rule 509 (the Official Information
 privilege).
  [6] From the in camera examination, the Magistrate notes there were forty-
 four (44) separate documents for which the defendant claimed the deliberative
 process privilege either for the entire document or a portion thereof. [FN6]
 The Magistrate has carefully read each page of each document for which the
 deliberative process privilege has been claimed.  Based on this review the
 Magistrate concludes that the privilege has been validly invoked and that the
 material at issue clearly involves the deliberative process of government
 officials in the criminal process, which was, at the time, predecisional as to
 prosecution and other law enforcement decisions.

      FN6. The Magistrate notes that the attorney work product doctrine was also
     invoked as to contents of these same forty-four documents.

  [7] Further, the Magistrate has evaluated the content thereof in view of the
 issues presented in this litigation of alleged governmental misconduct and
 concludes that the material is marginally relevant, if at all.  Nothing therein
 suggests bad faith on the part of governmental officials or conduct which would
 involve violation of the constitutional rights of the Church of Scientology and
 its members.  Indeed, the documents reveal a scrupulous concern, in many
 instances, for First and Fourth Amendment considerations.  Accordingly, the
 Magistrate concludes, in balancing the plaintiff's need against the defendant's
 interest in not disclosing this information, that the plaintiff has not shown
 an adequate need for the production of this material, the material is not of
 substantial relevancy and materiality to the issues in this case, and that the
 defendant has clearly shown by its declaration and from the documents
 themselves that they are entitled to the protection of the deliberative process
 privilege.  Accordingly, the plaintiff's motion to compel as to these documents
 shall be denied.
                            The Informant's Privilege
  [8] The Assistant Attorney General in his Declaration stated that some
 sixteen (16) documents contained factual information, either in whole or in
 part, from informants, who had furnished their information to the Criminal
 Division under circumstances which made it clear that confidentiality was
 expected as a condition to its delivery. [FN7]  Where the entire document has
 been withheld, it has been represented that disclosure of the subject matter of
 the information *467 contained in these documents would compromise the
 identity of the person providing the information, with consequent adverse
 effects on law enforcement efforts.  The informant's privilege not only
 protects the identity of the informant but also documents which by their very
 nature would reveal the confidential informant's identity.  Roviaro v.
 United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957).

      FN7. The informant's privilege need not be invoked by the head of the
     agency.  See, Association for Women in Science v. Califano, 566 F.2d
     339, 348 (D.C.Cir.1977).

  [9][10] The Magistrate has examined, in detail, each of these sixteen (16)
 documents and has determined that individual persons are identified therein in
 circumstances indicating that they are informants whose identities should be
 protected. [FN8]  Further, the contents thereof do not contain information of
 significant relevancy to the issues in this case.  The Magistrate concludes
 that disclosure would not be helpful to the plaintiff nor essential to a fair
 determination of the issues involved in this litigation.  Thus, in balancing
 plaintiff's need against the defendant's interest in this qualified privilege,
 the Magistrate concludes that the plaintiff has failed to carry its burden
 sufficient to require disclosure.  Thus, the plaintiff's motion to compel the
 documents for which the defendant has asserted the informant's privilege shall
 be denied.

      FN8. The allegation of government misconduct does not mandate disclosure,
     where the Magistrate can examine the documents in camera and determine if
     the requestor's needs versus the public policy reflected by the qualified
     privilege tips the scale towards disclosure.

  However, there are four (4) documents for which the defendant, on June 15,
 1983, sought protection from disclosure on the grounds that they contained
 redacted portions which, if disclosed, would reveal the identity and existence
 of ongoing criminal investigations and adversely affect law enforcement efforts
 by making known the targets of those investigations and the fact that they were
 under investigation.  These documents were labelled C-432, C-432a at pg. 4,
 fn. 8, C-433 at pg. 2 and C-433b at pg. 4, fn. 8.  It is now January 8,
 1985.  If these investigations have been concluded since June 15, 1983, and
 there is no need for withholding the redacted portions at this time, then they
 should be disclosed.  If the defendant still invokes privilege as to these
 four (4) documents, within ten (10) days of this Memorandum Opinion and Order,
 it shall file a further affidavit and supplemental index describing the
 privilege and the factual bases therefor.
  Based on the foregoing analysis, it is now hereby this 8th day of January,
 1985,
  ORDERED that plaintiff's motion to compel be and is hereby DENIED [FN9] except
 that:

      FN9. In reviewing the documents as to each of the privileges involved, the
     Magistrate has closely scrutinized the documents or portions withheld to
     determine if the withheld information would be relevant to aid plaintiff to
     rebut the defendant's unclean hands defense in connection with the criminal
     prosecution of several Church of Scientology members between 1977 and
     1981.  The Magistrate observed no significant information which would be
     relevant or helpful to the plaintiff on this issue.

  1. Defendant shall file answers to supplemental interrogatories 1 and 2 within
 ten (10) days.
  2. Defendant shall file a further affidavit concerning the disappearance or
 loss of the Justice/CRM-006 file and its contents, as required hereinabove,
 within ten (10) days.
  3. Defendant shall file a further affidavit concerning the four (4) documents,
 redacted portions of which were withheld as of June 15, 1983 on the basis of
 ongoing criminal investigations. [FN10]

      FN10. The documents which were submitted for in camera examination are
     hereby Ordered to be filed under Seal in the event there is subsequent
     judicial review of this Memorandum Opinion and Order.

End of file...