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 OF CALIFORNIA, Plaintiff,
                                       v.
                     DEPARTMENT OF STATE et al., Defendants.
                              Civ. A. No. 77-1320.
               United States District Court, District of Columbia.
                                 June 19, 1980.
  Suit was brought under Freedom of Information Act against Department of State
 and others.  The defendants moved for summary judgment and plaintiff moved for
 more detailed justification, additional records and reconsideration of court's
 protective order.  The District Court, Aubrey E. Robinson, J., held that: (1)
 deletion of names in material sought under Freedom of Information Act was
 appropriate to safeguard personal privacy; (2) government properly withheld
 documents, in whole or in part, where government affidavits indexing documents
 revealed that six of them were verbatim copies of information provided in
 confidence by foreign governments and contained information which, if
 disclosed, would reveal a confidential foreign source; and (3) State
 Department's record pertaining to refusal to issue entry visas was properly
 withheld.
  Order accordingly.

 [1] RECORDS
 Under Freedom of Information Act, the indexing requirements for documents
 sought were met, where original index or supplemental affidavits stated who
 prepared each document, to whom it was sent, when it was sent, what exemptions
 were applicable, whether materials were segregable, description of document and
 justification for the exemption.  5 U.S.C.A. s 552 et seq.

 [2] RECORDS
 Where documents sought in Freedom of Information Act request appeared to be
 directly related to government agency's investigation of party seeking the
 documents, the documents fell within scope of the Freedom of Information Act
 request and must be disclosed, unless adequate Vaughn index justifying
 exemption was submitted.  5 U.S.C.A. s 552 et seq.

 [3] RECORDS
 Segregability requirement as to documents sought under Freedom of Information
 Act was met, where in most instances only small segments of documents had been
 deleted, deletions involved names or confidential information that was clearly
 exempt, and defendants had not shifted their burden of justifying nondisclosure
 by sweeping, generalized claims of exemption, but instead had set forth
 specific description of each deleted portion and had explained reasons for each
 deletion.  5 U.S.C.A. s 552 et seq.

 [4] RECORDS
 Unless there is public interest in disclosure of names within material sought
 in Freedom of Information Act, deletions of names is appropriate to safeguard
 personal privacy.  5 U.S.C.A. s 552(b)(6), (b)(7)(C).

 [5] RECORDS
 Deletion of names in material sought under Freedom of Information Act was
 appropriate to safeguard personal privacy, where party seeking material had not
 shown that public purpose would be served by disclosure of names and had policy
 and history of seeking retribution against its perceived enemies.  5
 U.S.C.A. s 552(b)(6), (b)(7)(C).

 [6] RECORDS
 Material sought under Freedom of Information Act is exempt from disclosure if
 it reveals information provided in confidence by foreign government,
 information provided by United States to foreign government in confidence
 pursuant to written agreement, or confidential foreign source.  5 U.S.C.A. s
 552(b)(1).

 [7] RECORDS
 Government properly withheld, in whole or in part, documents sought under
 Freedom of Information Act, where government affidavits indexing documents
 revealed that six of them were verbatim copies of information provided in
 confidence by foreign governments and contained information which, if
 disclosed, would reveal confidential foreign source.  5 U.S.C.A. s
 552(b)(1).

 [8] RECORDS
 Segregability requirement, with respect to information sought under Freedom of
 Information Act, exists so that information which would be disclosed but for
 its nexus with exempt information is provided to the Freedom of Information Act
 plaintiff.  5 U.S.C.A. s 552 et seq.

 [9] RECORDS
 Since everything in the documents sought under Freedom of Information Act was
 by definition exempt, the segregability requirement was inapplicable to them.
 5 U.S.C.A. s 552(b)(1).

 [10] RECORDS
 Information was properly withheld from disclosure under Freedom of Information
 Act, where it revealed name of, or identifying information concerning,
 confidential source.  5 U.S.C.A. s 552(b)(7)(D).

 [11] RECORDS
 Document submitted by foreign law enforcement agency in confidence to United
 States agency was exempt in its entirety from disclosure under Freedom of
 Information Act, where disclosure of information in report would reveal area of
 investigation and therefore source of the report.  5 U.S.C.A. s
 552(b)(7)(D).

 [12] RECORDS
 Permanent record of State Department pertaining to refusal to issue entry visa
 was properly withheld pursuant to exemption from Freedom of Information Act
 provided for information specifically exempted from disclosure by statute,
 where the Immigration and Nationality Act provides that record of State
 Department pertaining to issuance or refusal of visas shall be considered
 confidential.  Immigration and Nationality Act, s 222(f), 8 U.S.C.A. s
 1202(f);  5 U.S.C.A. s 552(b)(3).
  *419 Andra N. Oakes, William A. Dobrovir, Washington, D. C., for plaintiff.
  Stephen S. Cowen, Asst. U. S. Atty., U. S. District Court, Washington, D. C.,
 for defendants.
                          MEMORANDUM OPINION AND ORDER

  AUBREY E. ROBINSON, District Judge.
  This suit was brought under the Freedom of Information Act (FOIA), 5 U.S.C.
 s 552, et seq., by the Church of Scientology against the Department of State,
 et al.  Before the Court are Defendants' Motion for Summary Judgment and
 Plaintiff's Motion for More Detailed Justification, Additional Records and
 Reconsideration of the Court's Protective Order.  This Court has jurisdiction
 under 5 U.S.C. s 552(a)(4)(B) and Rule 56 of the Federal Rules of Civil
 Procedure.  There are four issues involved: (1) is Defendants' index adequate,
 (2) have Defendants met the segregability requirement, (3) have Defendants
 exercised exemptions properly, and (4) should the Court reconsider its
 Protective Order banning further discovery.
                             I. PROCEDURES FOLLOWED
  As established in Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert.
 denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), and subsequently
 reiterated in Ray *420 v. Turner, 587 F.2d 1187 (D.C.Cir.1978), a
 District Court should follow a three step procedure to assure responsible de
 novo review of agency action on a FOIA request.  The Court in Ray v. Turner,
 supra, at 1191-92, summarized the steps:
   (1) (The Court should require) that the agency submit a "relatively detailed
 analysis (of the materials withheld) in manageable segments."  "(C)onclusory
 and generalized allegations of exemptions" would no longer be accepted by
 reviewing courts.  . . .  (2) "(A)n indexing system (that) would subdivide the
 document under consideration into manageable parts cross-referenced to the
 relevant portion of the Government's justification" . . .  This index would
 allow the district court and opposing counsel to locate specific areas of
 dispute for further examination and would be an indispensible aid to the Court
 of Appeals reviewing the District Court's decision.  (3) "(A)dequate adversary
 testing" would be ensured by opposing counsel's access to the information
 included in the agency's detailed and indexed justification and by in camera
 inspection, guided by the detailed affidavit and using special masters
 appointed by the court whenever the burden proved to be especially onerous.
  (1) This Court has not accepted abstract or conclusory claims of FOIA
 exemptions.  In the case at bar, the Court did not accept Defendants' five
 initial affidavits regarding documents 1-89.  Rather, on March 1, 1978, the
 Court ordered Defendants to submit a detailed Vaughn index for documents 1-89,
 subdivided into manageable parts, and cross-referenced to the government's
 justifications for non-disclosure.  On May 3, Defendants satisfied the Court's
 Order by providing detailed, document-by-document descriptions of the substance
 of documents 1-89 divided into manageable segments.  In recognition of
 Defendants' good faith efforts to provide non-conclusory Vaughn indexes and
 justifications, the Court granted Defendants' Motion for a Protective Order
 prohibiting further discovery.  On October 2, 1978, Plaintiff requested
 documents referenced in material disclosed pursuant to Plaintiff's original
 request.  In response, the government released documents 90-92 in part and
 documents 93-100 in full.  Defendants also submitted six additional affidavits,
 further indexing documents 1-89 and providing more specific justifications for
 deletions.  For documents 1-100, the original index or supplemental affidavits
 state (1) who prepared the document, (2) to whom it was sent, (3) when it was
 sent, (4) what exemptions are applicable, (5) whether the materials are
 segregable, (6) a description of the document, and (7) justification for the
 exemption.  The indexing requirements for these documents have therefore been
 met.  See Church of Scientology v. Bell, No. 76-1006, slip op. at 2 (D.D.C.,
 Jan. 29, 1980).
  (2) Plaintiff has also asked this Court to order Defendants to provide non-
 conclusory Vaughn indexes for referenced documents Request Nos. 1-21 and for
 secondarily referenced documents ABIJAN 2824, STATE 169389, STATE 208221 and
 "enclosure," STATE 132692 and "report of Greek authorities."  The Defendants
 claim that these twenty-seven documents (some of which have been released in
 part or in full) fall outside the scope of Plaintiff's original request.
 Plaintiff's original FOIA request sought all records in the Department of State
 concerning the Church of Scientology, and FBI records for transmission of
 any information on Scientology to foreign governments, Interpol or municipal
 agencies.  The context and titles of these additional documents, which
 Plaintiff has specifically identified from records previously disclosed, appear
 directly related to the Department of State investigation of the Church of
 Scientology.  Consequently, the documents fall within the scope of Plaintiff's
 FOIA request, and must be disclosed unless an adequate Vaughn index is
 submitted.
  (3) Plaintiff contends that Defendants have not satisfied the segregability
 requirement for documents 1-100.  Plaintiff's assertion *421 is incorrect.
 In most [FN1] instances, only small segments of documents 1-100 have been
 deleted.  These deletions involve names or confidential information that is
 clearly exempt.  See discussion, infra.  Moreover, Defendants have not shifted
 their burden of justifying non-disclosure to the Court "by sweeping,
 generalized claims of exemption."  Mead Data Central Inc. v. USAF, 566 F.2d
 242, 260 (D.C.Cir.1977).  Instead, they have set forth specific descriptions of
 each deleted portion and have explained the reasons for each deletion.  The
 segregability requirement has been met.

      FN1. Defendants correctly contend that segregation is unnecessary for six
     of the twelve documents withheld pursuant to Exemption 1.  See discussion,
     infra.

                          II. PARTICULAR EXEMPTIONS CLAIMED
  (4, 5) Exemption 6 of FOIA, 5 U.S.C. s 552(b)(6), permits agencies to
 withhold information to protect individuals' privacy.  Exemption 6 states:
   (b) This section does not apply to matters that are . . .  (6) personnel and
 medical and similar files the disclosure of which would constitute a clearly
 unwarranted invasion of personal privacy.
  The legislative history of Exemption 6 is informative.  H.R.Rep.No.1497, 89th
 Cong., 2d Sess. 11 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2428
 notes:
   The limitation of a "clearly unwarranted invasion of privacy" provides a
 proper balance between the protection of an individual's right of privacy and
 the preservation of the public's right to Government information by excluding
 those kinds of files the disclosure of which might harm the individual.
 (emphasis added).
  Similarly, the S.Rep.No.813, 89th Cong., 1st Sess., 9 (1965) explained:
   The phrase "clearly unwarranted invasion of personal privacy" enunciates a
 policy that will involve a balancing of interests between protection of an
 individual's private affairs from unnecessary public scrutiny, and the
 preservation of the public right to government information.  (emphasis added).
  Exemption 7(C), like Exemption 6, allows agencies to withhold material to
 safeguard personal privacy.  Exemption 7(C) bars disclosure:
   (of) investigatory records compiled for law enforcement purposes, but only to
 the extent that the production of such records would . . .  constitute an
 unwarranted invasion of personal privacy.
  The Exemption 7(C) standard is less stringent than the Exemption 6 standard
 since the term "clearly" is deleted, but the purposes are similar.  Church
 of Scientology v. Bell, supra, slip op. at 6.  In the instant litigation,
 Defendants have withheld, pursuant to Exemptions 6 and 7(C), the identities of
 third persons who provided information and participated in the investigation of
 the Church of Scientology.  Unless there is a public interest in the disclosure
 of names, Exemption 6 or 7(C) deletions are appropriate.  Dept. of the Air
 Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); Getman v.
 NLRB, 450 F.2d 670 (D.C.Cir.1971); Wine Hobby U.S.A., Inc. v. U. S. Bureau
 of Alcohol, Tobacco, and Firearms, 502 F.2d 133 (3d Cir. 1974).  Plaintiff has
 not shown that a public purpose would be served by the disclosure of the names
 in question.  Furthermore, Plaintiff has a practice of harassing its
 "suppressors."  Some documents, such as numbers 1, 33, 81, and 87, describe
 bizarre situations and harsh punishments involving disenchanted
 Scientologists.  In addition, Church leaders have been found liable for
 malicious prosecution and convicted of theft of government documents.  See
 Allard v. Church of Scientology, 129 Cal.Rptr. 797 (Cal.App.1976), cert.
 denied, 429 U.S. 1091, 97 S.Ct. 1101, 51 L.Ed.2d 537 (1977); United
 States v. Hubbard, 474 F.Supp. 64, 70-71 (D.D.C.1979).  Given Plaintiff's
 "policy and history of seeking retribution against its perceived enemies,"
 Church of Scientology v. Bell, supra, slip op. at 4, the Exemption 6 and
 7(C) claims must be upheld.  Id., at 3, 4; see also Church of Scientology
 v. Department *422 of Army, et al., 611 F.2d 738, 744-48 (9th Cir. 1979);
 Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978).
  (6) Exemption 1 states that documents are exempt when they are:
   (A) specifically authorized under criteria established by an Executive order
 to be kept secret in the interest of national defense or foreign policy and (B)
 are in fact properly classified pursuant to such Executive order.
  Executive Order 12065, which supercedes Executive Order 11652, states that
 documents are properly classified if their disclosure "could reasonably be
 expected to cause at least identifiable damage to the national security."  The
 Order further provides that "unauthorized disclosure of foreign government
 information or the identity of a confidential foreign source is presumed to
 cause at least identifiable damage to national security."  Foreign government
 information is defined as "information provided to the United States in
 confidence by, or produced by the United States pursuant to a written joint
 arrangement requiring confidentiality with, a foreign government or
 international organization of governments."  Thus, if material reveals (1)
 information provided in confidence by a foreign government, (2) information
 provided by the United States to a foreign government in confidence pursuant to
 a written agreement, or (3) a confidential foreign source, it is exempt.  See
 Church of Scientology v. Turner, No. 75-1048 slip op. at 4 (D.D.C. Dec. 13,
 1979).
  (7) Twelve documents have been withheld pursuant to Exemption 1.  The nine
 government affidavits indexing these documents reveal that six of the documents
 are verbatim copies of information provided in confidence by foreign
 governments.  The other six documents contain information which, if disclosed,
 would reveal a confidential foreign source.  Only this information has been
 withheld from the latter six documents.  These affidavits are clear and
 convincing, and must be accorded "substantial weight" by this Court.  Ray v.
 Turner, supra, at 1194.  The Court concludes that the government properly
 withheld, in whole or in part, these documents.
  (8, 9) Defendants have met the segregability requirement for six of the
 Exemption 1 documents, but admittedly refused to do so for the six documents
 provided in confidence by foreign governments.  Plaintiff contends that the
 requirement must be met for these documents, citing Church of Scientology v.
 Bell, 603 F.2d 945, 950-51 (D.C.Cir.1979).  This contention is misplaced.  The
 segregation requirement exists so that information which would be disclosed but
 for its nexus with exempt information is provided to the FOIA Plaintiff.  All
 information provided in confidence by foreign governments to the United States
 is, under terms of Executive Order 12065, exempt.  This broad exemption exists
 because it is disclosure qua disclosure, and not disclosure of information,
 that would cause "at least identifiable damage to the national security."
 Since everything in those six documents is by definition exempt, the
 segregability requirement is inapplicable to them.  Defendants' Exemption 1
 claims prevail.
  (10, 11) Exemption 7(D) permits an agency to withhold information contained
 in records compiled for law enforcement purposes if disclosure would reveal
 "the identity of a confidential source."  See Church of Scientology v. Bell,
 supra, slip op. at 4.  Defendants' affidavits explain, in detail, that
 information was withheld only if it revealed the name or identifying
 information of a confidential source.  This information was properly
 withheld.  Id.; U. S. v. Nix, supra, 1003-1004.  Defendants have withheld
 one document, claiming that the information itself would reveal a foreign
 confidential source.  This document is a report submitted by a foreign law
 enforcement agency in confidence.  Disclosure of the information in the report
 would reveal the area of investigation, and therefore the source of the
 report.  It is exempt in its entirety.  See Mitsubishi Elec. Co. v. Dept. of
 Justice, No. 76-813, slip op. at 6 (D.D.C. April 1, 1977).
  (12) Exemption 3 provides that an agency need not release information which
 is:
   *423 specifically exempted from disclosure by statute (other than section
 552b of this title), provided that such statute (A) requires that the matters
 be withheld from the public in such a manner as to leave no discretion on the
 issue, or (B) establishes particular criteria for withholding or refers to
 particular types of matters to be withheld.
  Defendants have withheld one document pursuant to Exemption 3, relying upon
 Section 222(f) of the Immigration and Nationality Act, 8 U.S.C. s
 1202(f).  The pertinent sections of this statute satisfy the criteria mandated
 by Exemption 3.  Section 222(f) provides that "(t)he records of the
 Department of State . . .  pertaining to the issuance or refusal or visas or
 permits to enter the United States shall be considered confidential . . . ."
 The document in question is a permanent record of the State Department that
 pertains directly to Defendants' refusal to issue an entry Visa.  It was
 therefore properly withheld pursuant to Exemption 3.
                    III. RECONSIDERATION OF PROTECTIVE ORDER
  The Defendants have already provided extensive discovery in this litigation.
 In addition, the Defendants have supplied an adequate Vaughn index for
 documents 1-100.  Finally, the Court is ordering the Government to submit a
 detailed Vaughn index for Request Nos. 1-21 and the six documents referenced
 therein.  For the reasons stated, the Court maintains the Protective Order,
 banning further discovery in this case.  An appropriate Order follows this
 Memorandum Opinion.

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