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., Appellant,
                                       v.
       William French SMITH, Attorney General of the United States, et al.
                                  No. 83-1049.
                         United States Court of Appeals,
                          District of Columbia Circuit.
                              Argued Oct. 21, 1983.
                             Decided Nov. 18, 1983.
  In Freedom of Information Act suit, plaintiff church appealed grant of summary
 judgment for the government by the United States District Court for the
 District of Columbia, John Lewis Smith, Jr., J., 579 F.Supp. 1060.  The
 Court of Appeals held that exemption 2 was properly applied to deletion of
 certain notations at top and bottom of subject document in view of finding that
 public disclosure would risk circumvention of federal statutes and that
 notations were deleted to protect sensitive administrative instructions for
 handling of the document.
  Affirmed.

 [1] RECORDS
 Exemption from disclosure requirements of Freedom of Information Act for
 matters that relate solely to internal personnel rules and practices
 encompasses filing and routing instructions;  disavowing Allen v. CIA, 636
 F.2d 1287.  5 U.S.C.A. s 552(b)(2).

 [2] RECORDS
 For exemption from disclosure requirements of Freedom of Information Act for
 matters relating solely to internal personnel rules and practices to be
 applicable the subject material should fall within terms of the statutory
 language and if the material relates to trivial administrative matters of no
 genuine public interest, the exemption is automatic but if withholding would
 frustrate legitimate public interest, the material should be released unless
 the government can show that disclosure would risk circumvention of lawful
 agency regulation.  5 U.S.C.A. s 552(b)(2).

 [3] RECORDS
 Exemption from disclosure requirements of Freedom of Information Act for
 materials relating solely to internal personnel rules and practices was
 applicable to notations at top and bottom of legal attache's message requesting
 information on founder of plaintiff church where district court found that
 public disclosure would risk circumvention of federal statutes and plaintiff
 did not dispute FBI's evidence of sensitivity as regards handling of the
 document.  5 U.S.C.A. s 552(b)(2).
  *828 **167 Appeal from the United States District Court for the District
 of Columbia (D.C.Civil Action No. 75-01577).
  Robert A. Seefried, Washington, D.C., for appellant.
  Nathan Dodell, Asst. U.S. Atty., Washington, D.C., with whom Stanley S.
 Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, Michael J. Ryan,
 Asst. U.S. Attys., and Robert M. Burnham, Atty., F.B.I., were on the brief, for
 appellees.

  Before EDWARDS and GINSBURG, Circuit Judges, and McGOWAN, Senior Circuit
 Judge.

  Opinion for the Court PER CURIAM.

  PER CURIAM:
  Plaintiff Founding Church of Scientology appeals the District Court's grant of
 summary judgment upholding a refusal by the Federal Bureau of Investigation
 (FBI) to disclose certain document portions under the Freedom of Information
 Act (FOIA), 5 U.S.C. s 552 (1982).  The issue on appeal is whether the FBI
 properly invoked FOIA exemption 7(D) with respect to certain documents, and
 exemption 2 with respect to another.  Id. s 552(b)(2), (7)(D).  For the
 reasons set forth in its opinion, we affirm *829 **168 the District Court
 with respect to those document portions withheld under exemption 7(D). [FN1]
 Because of an asserted conflict in our precedents, however, we find it
 necessary to address the proper scope of exemption 2 in greater detail.  We
 conclude by affirming the result reached by the District Court that exemption 2
 does shield the remaining document portions from disclosure under FOIA.

      FN1. In considering the document portions withheld under exemption 7(D),
     the District Court properly adhered to the threshold test enunciated in
     Pratt v. Webster, 673 F.2d 408, 413-21 (D.C.Cir.1982).  Although the
     government seeks affirmance of the District Court's decision, appellees'
     counsel has urged us to reconsider certain aspects of our holding in
     Pratt.  We decline that invitation and reaffirm that Pratt is the law
     of this circuit insofar as it interprets the threshold requirement of
     exemption 7.

  The facts and procedural posture of this case are adequately summarized in the
 District Court's opinion.  Founding Church of Scientology of Washington,
 D.C., Inc. v. Levi, 579 F.Supp. 1060, at 1061-62 (D.D.C.1982).  We therefore
 focus our attention on the one document whose disposition remains in doubt.
 That document consists of an airgram transmitted by the American legal attache
 in Havana, Cuba, to FBI headquarters on April 17, 1951.  The airgram requests
 information on Scientology founder L. Ronald Hubbard.  The FBI disclosed to
 plaintiff the full contents of the legal attache's message, but deleted certain
 notations at the top and bottom of the page "to protect sensitive
 administrative instructions for the handling of the document."  See Joint
 Appendix at 31, 176.  The Bureau asserts FOIA exemption 2 as the basis for
 nondisclosure, explaining that
   the material withheld [is] of an administrative nature and totally unrelated
 to the subject of plaintiff's request.  The negligible value of such routine
 internal administrative material to the plaintiff, when weighed against the
 material's comparative sensitivity, called for a withholding of the material.
  Id. at 20 (Affidavit of FBI Special Agent Martin Wood).
  At oral argument, government counsel conceded that the type of material
 deleted is indistinguishable from the filing and routing instructions that we
 held unprotected under FOIA Exemption 2 in Allen v. CIA, 636 F.2d 1287,
 1289-91 (D.C.Cir.1980).  Nonetheless, counsel asserted that the Allen
 holding conflicts with our earlier ruling in Lesar v. United States
 Department of Justice, 636 F.2d 472, 485-86 (D.C.Cir.1980).  In Lesar, we
 held that exemption 2 protects from disclosure informant codes contained in FBI
 documents.  Furthermore, in footnote 77 of that opinion, we cited with approval
 decisions from two other circuits in which administrative handling instructions
 identical to those in Allen were found to fall within the scope of exemption
 2.  That footnote read:
   See, e.g., Nix v. United States, 572 F.2d 998, 1005 (4th Cir.1978) (FBI
 routing stamps, cover letters, and secretary initials within ambit of Exemption
 2);  Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir.1977) (FBI's
 "administrative and mail routing stamps, and references to previous
 communications utilized to maintain control of an investigation" within ambit
 of Exemption 2).
  Id. at 486 n. 77.
  The conflict between our decisions in Allen and Lesar is apparent.  The
 government contends, however, that because Allen relied on Jordan v.
 United States Department of Justice, 591 F.2d 753 (D.C.Cir.1978) (en banc), it
 has effectively been overruled by our subsequent decision in Crooker v.
 Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc).
  [1] We agree.  Exemption 2 provides that requested materials may be withheld
 if they relate "solely to the internal personnel rules and practices of an
 agency."  5 U.S.C. s 552(b)(2) (1982).  In Jordan, we construed this
 language narrowly to cover only minor employment-related matters such as pay,
 pensions, vacations, hours of work, lunch hours, and parking.  591 F.2d at
 763.  Our holding in Allen relied on this limiting
 construction *830 **169 to find that filing and routing instructions do
 not fall within the ambit of exemption 2 because they do not relate to terms or
 conditions of agency employment.  636 F.2d at 1289-91 (citing Jordan, 591
 F.2d at 764).  Subsequently in Crooker v. Bureau of Alcohol, Tobacco &
 Firearms, however, we repudiated the narrow construction of exemption 2 that we
 had adopted in Jordan, [FN2] and specifically suggested that the effect of
 our ruling was to undercut that portion of the Allen decision that had
 relied on Jordan.  See 670 F.2d at 1069 n. 48, 1073.  We hold therefore
 that to the extent Allen conflicts with our subsequent en banc decision in
 Crooker, it no longer represents the law of this circuit.

      FN2. Our precise words were:
     Although the majority opinion in Jordan stated that the language of
     Exemption 2 "would seem to refer to those rules and practices that concern
     relations among the employees of an agency," 591 F.2d at 763, and that
     "personnel" "normally connote[s] matters relating to pay, pension,
     vacations, hours of work, lunch hours, parking, etc.," id., we feel that
     the meaning of Exemption 2 is not so limited.
     Crooker, 670 F.2d at 1073.  See also Jordan, 591 F.2d at 782
     (Leventhal, J., concurring in result) ("Exemption 2 applies ... to the
     internal personnel rules and to the internal practices of an agency."
     (emphasis deleted)).

  [2][3] The only remaining difficulty arises from the implication in
 Crooker that administrative handling instructions, although within the
 broader reading of exemption 2, must be shown to threaten circumvention of
 agency regulation upon disclosure before withholding can be approved under the
 exemption.  See id. at 1069 n. 48. [FN3]  It is conceivable that this
 implication may be overbroad in light of Supreme Court precedent and the
 legislative history. [FN4]  *831 **170 Nevertheless, we need not reach
 that issue because the record in the present case satisfies even the more
 rigorous standard applied in Crooker.  In its opinion, the District Court
 found that "public disclosure of the information would risk circumvention of
 federal statutes."  Founding Church of Scientology, 579 F.Supp. 1060 at
 1065 (citation omitted).  Plaintiff has not contested this finding on appeal,
 nor indeed did it dispute the FBI's evidence of sensitivity during the summary
 judgment proceedings in District Court. [FN5]  See Brief for Appellant at 27-
 29;  Plaintiff's Memorandum in Reply to Defendants' Motion for Summary Judgment
 at 11-12, reprinted in Joint Appendix at 138-39.  We therefore have no
 hesitation in affirming the District Court's judgment that exemption 2 protects
 the administrative handling instructions at issue in this case from disclosure
 under FOIA.

      FN3. The Crooker court noted the following language from the Allen
     opinion:  "It is even doubtful that the filing and routing instructions
     would be exempt under the broader reading of the exemption given in the
     House report [because disclosure] would not cause such 'circumvention of
     agency regulations.' "  Allen, 636 F.2d at 1290 n. 20 (quoting
     Department of Air Force v. Rose, 425 U.S. 352, 364, 96 S.Ct. 1592, 1600,
     48 L.Ed.2d 11 (1976)), cited in Crooker, 670 F.2d at 1069 n. 48.

      FN4. After comparing the House and Senate reports, the Supreme Court in
     Department of Air Force v. Rose suggested that a bifurcated analysis may
     be called for in exemption 2 cases.  The Court stated:
     In sum, we think that, at least where the situation is not one where
     disclosure may risk circumvention of agency regulation, Exemption 2 is not
     applicable to matters subject to such a genuine and significant public
     interest....  Rather, the general thrust of the exemption is simply to
     relieve agencies of the burden of assembling and maintaining for public
     inspection matter in which the public could not reasonably be expected to
     have an interest.
     425 U.S. at 369-70, 96 S.Ct. at 1603.  The Court appeared to distinguish
     between matters of genuine public interest and those involving trivial
     administrative details, and implied that only the former would be subject
     to a showing of possible regulatory circumvention upon disclosure before
     falling under exemption 2.  See also id. at 364, 96 S.Ct. at 1600.
     Nowhere in the Court's opinion, the legislative history, or the statute's
     language, however, is there any hint that trivial administrative details
     must also satisfy this showing in order to fall within the exemption's
     protective ambit.
     The language of Rose and a review of our own precedents suggests that
     the following approach to exemption 2 cases may therefore be appropriate.
     First, the material withheld should fall within the terms of the statutory
     language as a personnel rule or internal practice of the agency.  See
     supra note 2 and accompanying text.  Then, if the material relates to
     trivial administrative matters of no genuine public interest, exemption
     would be automatic under the statute.  See, e.g., Nix, 572 F.2d at
     1005;  Maroscia, 569 F.2d at 1002.  If withholding frustrates legitimate
     public interest, however, the material should be released unless the
     government can show that disclosure would risk circumvention of lawful
     agency regulation.  See Rose, 425 U.S. at 364, 369-70, 96 S.Ct. at 1600-
     03.   See also Jordan, 591 F.2d at 783 (Leventhal, J., concurring in
     result), cited in Crooker, 670 F.2d at 1057.
     This approach suggests that nondisclosure may have been appropriate in the
     Allen case because the filing and routing instructions there were found
     to be "trivial."  636 F.2d at 1290 n. 21.  This is not to imply that all
     administrative handling instructions are per se routine internal matters of
     no genuine public interest.  They certainly may be more significant in some
     cases.  Cf. generally 1 J. O'REILLY, FEDERAL INFORMATION DISCLOSURE P
     12.04, at 12-11 (1983).  Moreover, given the presumption favoring
     disclosure expressed in FOIA, Rose, 425 U.S. at 360-62, 96 S.Ct. at
     1598-99, a reasonably low threshold should be maintained for determining
     when withheld administrative material relates to significant public
     interests, see, e.g., id. at 367-69, 96 S.Ct. at 1602-03.  See also
     Jordan, 591 F.2d at 784 (Leventhal, J., concurring in result).

      FN5. Cf. Franz Chem. Corp. v. Philadelphia Quartz Co., 594 F.2d 146,
     150 (5th Cir.1979) ("Where the moving papers do not reveal the presence of
     a factual controversy and the opposing party manifests silent assent
     through inaction, the opposing party will not thereafter on appeal be heard
     to belatedly assert as grounds for reversal that some factual disputes
     implicit in the underlying arguments have yet to be resolved.").

  It is so ordered.

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