Church of Scientology of California, Plaintiff
v.
Griffin Bell, et al., Defendants.
Civil Action No. 76-1006
United States District Court; D. Colorado.
1/30/80
ROBINSON, Jr., District Judge.
Memorandum Opinion and Order
*1 Before the Court are Cross Motions for Summary Judgment in an action
brought by the Church of Scientology against Griffin Bell, et al. Plaintiff
seeks information under the Freedom of Information Act, 5 U. S. C. s 552 et
seq., (FOIA). The issues are threefold, namely: (1) is Defendants' index
adequate, (2) was the segregability requirement met, and (3) were the
exemptions properly exercised.
As carefully delineated in Vaughn v. Rosen, 484 F. 2d 820 (1973), cert.
denied, 415 U. S. 977 (1974), and later highlighted in Ray v. Turner, 587
F. 2d 1187 (D. C. Cir. 1978), a District Court should follow a three step
procedure to ensure meaningful de novo review of agency action on a FIOA
request. The Court in Ray v. Turner, supra, at 1194, recently summarized
the three steps:
(1) [The Court should require] that the agency submit a "relatively detailed
analysis [of the material 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."
In the instant case, it is only the second step, the indexing process, that is
questioned by Plaintiff. It asserts that the documents are not subdivided into
manageable parts, and that the subdivisions are not cross-referenced to the
government's justification for nondisclosure. Plaintiff is correct in
asserting that Defendants' index did not outline the materials or the exemption
justification precisely as mandated by Ray v. Turner, supra. The Court does
not find this dispositive, however, because the index is easily understood and
comports with the underlying purpose of Ray v. Turner.
For each document, the index states (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 descriptions are not conclusory;
they state why the document was written and, in general terms, what was
stated. The justification explains the relationship between the document and
the exemption(s) claimed. The justification is not overly broad. Rather, it
analyzes the specific aspects of each document in light of each exemption
claimed. The Court finds that the index in this case satisfies the purposes
of Ray v. Turner, supra, and does not provide grounds either for judgment in
favor of Plaintiff or for remand to the agency.
*2 Plaintiff next alleges that the segregability requirement has not been
met. This contention is erroneous. Only small parts of documents have been
excerpted; in almost all cases, the excerpts have consisted of names or
opinions that clearly may be withheld. Furthermore, contrary to Plaintiff's
allegations, defendants have not "lumped" the exemptions together within the
meaning of Mead Data Central, Inc. v. USAF, 566 F. 2d 242 (D. C. Cir.
1977). Rather, they have presented ample descriptions of each excerpted
segment, and have focused the exemptions claimed to each description.
Defendants have met the segregability requirements imposed by the Act.
Finally, Plaintiff alleges that defendants have not properly withheld
information pursuant to the exemptions. Exemption 5 permits agencies to
withhold materials relating to methods by which a decision is reached, the
matters considered, the contributing influences, and the role played by work of
participating employees. This includes work product, so long as it is
demonstrated that the information withheld is confidential. Mead Data
Central, Inc. v. USAF, supra at 253. In the instant case, the materials were
confidentially written by employees and stemmed solely from ongoing and
completed litigation. This is precisely the type of information protected by
exemption 5.
Exemptions 6 and 7(c) permit agencies to withhold material to protect
individuals' privacy. The exemption 6 standard is stricter than the 7(c)
standard, but the purposes are similar. 120 Cong. Rec. 17033 (May 20,
1974). In the instant case, the information withheld pursuant to exemption 6
is the names of individuals who have communicated with defendants in strict
confidence. Unless there is a public interest in the disclosure of names, an
exemption 6 deletion is appropriate. Dept. of the Air Force v. Rose, 425 U.
S. 352 (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 alleged a public purpose served by
the disclosure of the names in question. Furthermore, it is clear that the
unnamed individuals have a great privacy interest to be protected. Plaintiff
has a policy and history of seeking retribution against its perceived enemies,
and very high Church officials have been convicted of heinous acts. U. S.
v. Hubbard, 474 F. Supp. 64, 70-71 (D. D. C. 1979).
The information withheld pursuant to exemption 7(c) is names of individuals
who have been investigated by Defendants. Again, Plaintiff has submitted no
public purpose supporting disclosure. Furthermore, disclosure of the
individuals' names might serve to damage their reputations or lead to personal
embarrassment and discomfort. Lesar v. Dept. of Justice, Civil Action No. 77-
0692 (D. D. C., July 28, 1978) Slip Op. at 6. Clearly, the balance of
interests in this case militates against disclosure. See Nix v. U. S., 572
F. 2d 998, 1006 (4th Cir. 1978).
*3 Exemption 7(d) provides for the withholding of information which would
disclose the identity of a confidential source who provides information toward
a criminal law enforcement investigation. Mitsubishi Electric Corp. v. Dept.
of Justice, Civil Action No. 76-813 (D. D. C. April 1, 1977) Slip Op. at 6.
Exemption 7(d) exists because it is essential that investigative organizations
such as the IRS retain the ability to obtain information from confidential
sources. The Supplemental Index, filed with the Hayward affidavit, specifies
in great detail the information segments which have been withheld pursuant to
exemption 7(d). Defendants have withheld only the minimum information
necessary to effectuate the purpose of exemption 7(d). The information was
properly withheld. See Nix v. U. S., supra, at 1003-1004, Mitsubishi
Electric Corp. v. Dept. of Justice, supra, at 6-7.
Exemption 2 applies to matters that relate solely to the internal personnel
rules and practices of an agency. In the instant case, two items of
information were withheld pursuant to exemption 2. One, Document No. 12,
Section 2, DJ File No. 154-226-61, relates to "matters related solely to the
internal practices of an agency." The other, Document No. 20 Section 3, DJ
File No. 156-226-61, is a paragraph that deals with work performed by revenue
agents "consisting of matters related solely to the internal personnel rules
and practices of an agency." The first item of information does not fall into
the scope of exemption 2 because it does not deal with personnel rules or
practices. The other item, however, falls squarely within the scope of
exemption 2. See Linebarger v. FBI, Civil Action No. C-76-1826-WWS (N. D. Cal.
August 1, 1977) Slip Op. at 3.
Exemption 7(a) permits agencies to withhold materials if disclosure would
interfere with enforcement proceedings. The Supreme Court has held that
whenever documents are contained in an open investigatory file where an
enforcement proceeding is pending, no specific showing of interference is a
necessary prerequisite to the invocation of exemption 7(a). Robbins Tire
and Rubber Co. v. NLRB, 437 U. S. 214 (1978). The present adjudicative posture
between the parties renders the interference manifest. Mitsubishi Electric
Corp. v. U. S., supra. The one item withheld pursuant to exemption 7(a) is a
citizens letter transmitted to other federal agencies of alleged criminal
violations by Plaintiff. Resultant investigations are ongoing, and release of
the letter would interfere with those investigations. The letter was properly
withheld pursuant to exemption 7(a).
Exemption 3 permits agencies to withhold documents if nondisclosure is
authorized by a statute meeting exemption 3 requirements. The parties agree
that 26 U. S. C. s 6103 is an applicable statute. See Fruehauf v. IRS,
566 F. 2d 574 (5th Cir. 1977). That statute provides that tax returns and tax
return information are confidential. The information withheld was gleened from
tax returns supplied by third parties. As such, it was properly withheld.
*4 It is therefore by the Court this 29th day of January, 1980,
ORDERED, that Defendants shall disclose the portions of Document 12 Section
2, DJ File No. 154-226-61 that were withheld pursuant to exemption 2; and it is
FURTHER ORDERED, that in all other respects, Defendants' Motion for Summary
Judgment is GRANTED, and Plaintiff's Motion for Summary Judgment is DENIED.
Judgment
Pursuant to this Court's Memorandum Opinion and Order dated January 28, 1980,
it is by the Court this 30th day of January, 1980,
ORDERED, that Defendants shall disclose the portions of Document 12 Section
2, DJ File No. 154-226-61 that were withheld pursuant to exemption 2; and it is
FURTHER ORDERED, that in all other respects, Defendants' Motion for Summary
Judgment is GRANTED, and Plaintiff's Motion for Summary Judgment is DENIED.