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.