CHURCH OF SCIENTOLOGY OF CALIFORNIA, a nonprofit corporation, Plaintiff-
Appellant,
v.
UNITED STATES DEPARTMENT OF the ARMY: Howard H. Callaway, Secretary of the
Army; U. S. Intelligence Agency; Major Aaron, Assistant Chief of Staff for Army
Intelligence, Defendants-Appellees.
CHURCH OF SCIENTOLOGY OF CALIFORNIA, a nonprofit corporation, Plaintiff-
Appellant,
v.
UNITED STATES DEPARTMENT OF DEFENSE; Office of the Secretary of Defense; James
R. Schlesinger, Secretary of the Department of Defense; United States
Department of the Navy; J. Wm. Middendorf II, Secretary of the Navy; Naval
Intelligence Command: Rear Admiral E. F. Rectanus, Director of Naval
Intelligence, Defendants- Appellees.
Nos. 78-1168, 78-1169.
United States Court of Appeals,
Ninth Circuit.
Nov. 7, 1979.
As Amended on Denial of Rehearing April 7, 1980.
As Modified.
Suggestion for Rehearing En Banc in No. 78-1169 Rejected April 7, 1980.
Religious association brought action under Freedom of Information Act seeking
to compel disclosure of certain documents of the Department of Defense and the
Department of Army. The United States District Court for the Central District
of California, Warren J. Ferguson, J., entered judgment releasing certain
documents with details excised and refusing to release other documents, and
plaintiff appealed. The Court of Appeals, J. Blaine Anderson, Circuit Judge
held that: (1) district court erred in simply approving the withholding of an
entire document without entering a finding of segregability, or the lack
thereof; (2) district court did not err in withholding from disclosure certain
portions of documents on ground that disclosure would constitute a clearly
unwarranted invasion of personal privacy; the deleted information pertained to
personnel of plaintiff religious association and investigations of certain
individuals, there was no legitimate public purpose served by disclosure of the
excised information, information released adequately apprised plaintiff of the
type of information it sought in bringing the action, and no more information
than was necessary to protect privacy of individuals involved had been excised;
and (3) district court erred in exempting a portion of document pertaining to
background investigation of particular individual on ground that the portion
excised constituted investigatory records compiled for law enforcement
purposes, since evidence was insufficient to warrant a finding that the Naval
Investigative Service had a law enforcement purpose based on properly delegated
enforcement authority and since record did not disclose any enforcement
proceeding pending.
Affirmed in part and reversed and remanded in part.
[1] RECORDS
The nine exemptions to the Freedom of Information Act are to be narrowly
construed. 5 U.S.C.A. ss 552, 552(b)(1,7).
[2] FEDERAL COURTS
The appellate court has essentially two tasks in reviewing judgments on Freedom
of Information Act issues: court must determine whether district judge had
adequate factual basis for his or her decision, and if adequate factual basis
was established, court must determine whether decision below was clearly
erroneous. 5 U.S.C.A. s 552.
[3] RECORDS
In Freedom of Information Act case, burden is on government agency to establish
that given document is exempt from disclosure; in meeting its burden of proof,
government may not rely upon conclusory and generalized allegations of
exemptions, but, on the other hand, government need not specify its objections
in such detail as to compromise the secrecy of information. 5 U.S.C.A. s
552.
[4] RECORDS
In Freedom of Information Act case, the government, in meeting its burden of
establishing that document is exempt from disclosure, may rely upon detailed
affidavits or oral testimony so long as evidence offered enables court to make
independent assessment of government's claim of exemption; if agency supplies
a reasonably detailed affidavit describing the document and facts sufficient to
establish exemption, then district court need look no further in determining
whether exemption applies. 5 U.S.C.A. s 552.
[5] RECORDS
In Freedom of Information Act suit, if trial court finds that government
agency's affidavits or testimony are too generalized to establish eligibility
for exemption, it may, in its discretion, proceed to examine disputed documents
in camera for a firsthand determination of their exempt status. 5
U.S.C.A. ss 552, 552(a)(4)(B).
[6] RECORDS
In Freedom of Information Act suit, district court's prerogative to conduct an
in camera inspection of classified documents is not a substitute for
government's burden of proof and should not be resorted to lightly. 5
U.S.C.A. ss 552, 552(a)(4)(B).
[7] FEDERAL COURTS
On appeal from judgment entered in Freedom of Information Act suit, once
reviewing court is satisfied that trial court had adequate basis to decide, it
is guided by the "clearly erroneous" standard in evaluating substance of that
decision. 5 U.S.C.A. s 552.
[8] RECORDS
The doctrine of segregability applies to the national security exemption as
well as to the exemptions under the Freedom of Information Act. 5
U.S.C.A. s 552(b).
[9] FEDERAL COURTS
In Freedom of Information Act suit, district court erred in simply approving
the withholding of an entire document without entering a finding of
segregability, or the lack thereof; therefore, cause would be remanded to
district court for findings on segregability of any portion of document which
was withheld in its entirety. 5 U.S.C.A. s 552(b).
[9] RECORDS
In Freedom of Information Act suit, district court erred in simply approving
the withholding of an entire document without entering a finding of
segregability, or the lack thereof; therefore, cause would be remanded to
district court for findings on segregability of any portion of document which
was withheld in its entirety. 5 U.S.C.A. s 552(b).
[10] RECORDS
Case law identifies four factors to be balanced in weighing a claim of Freedom
of Information Act exemption for a clearly unwarranted invasion of personal
privacy: plaintiff's interest in disclosure, public interest in disclosure,
degree of invasion of personal privacy, and availability of any alternative
means of obtaining requested information; in weighing the factors, courts keep
in mind that the invasion of privacy must be "clearly" unwarranted. 5
U.S.C.A. s 552(b)(6).
[11] RECORDS
For privacy exemption from the Freedom of Information Act to be applicable, the
information must be contained in personnel or medical files or similar files,
and a "similar" file is defined simply as a file which contains information
similar to that found in a standard personnel file. 5 U.S.C.A. s 552(b)(6).
[12] RECORDS
In Freedom of Information Act suit brought by religious association,
district court did not err in withholding from disclosure certain
portions of documents of Department of Defense and Department of Army on ground
that disclosure would constitute a clearly unwarranted invasion of personal
privacy; the deleted information pertained to personnel of plaintiff religious
association and investigations of certain individuals, there was no legitimate
public purpose served by disclosure of the excised information, information
released adequately apprised plaintiff of the type of information it sought in
bringing the action, and no more information than was necessary to protect
privacy of individuals involved had been excised. 5 U.S.C.A. s 552(b)(6).
[12] RECORDS
In Freedom of Information Act suit brought by religious association,
district court did not err in withholding from disclosure certain
portions of documents of Department of Defense and Department of Army on ground
that disclosure would constitute a clearly unwarranted invasion of personal
privacy; the deleted information pertained to personnel of plaintiff religious
association and investigations of certain individuals, there was no legitimate
public purpose served by disclosure of the excised information, information
released adequately apprised plaintiff of the type of information it sought in
bringing the action, and no more information than was necessary to protect
privacy of individuals involved had been excised. 5 U.S.C.A. s 552(b)(6).
[13] RECORDS
For purpose of Freedom of Information Act exemption for investigatory records
compiled for law enforcement purposes, agency which has a clear law enforcement
mandate need only establish a "rational nexus" between enforcement of federal
law and the document for which exemption is claimed; however, an agency which
has a "mixed" function, encompassing both administrative and law enforcement
functions, must demonstrate that it had a purpose falling within its sphere of
enforcement authority in compiling the particular document. 5 U.S.C.A. s
552(b)(7)(D).
[14] RECORDS
In determining whether a "law enforcement purpose" is present for purposes of
Freedom of Information Act exemption, courts must look to purpose behind
compilation of document; agency must show that files were compiled for
adjudicative or enforcement purposes, and generally, files such as internal
audits compiled simply to determine whether agency's internal operations
comport with statute or regulation do not qualify. 5 U.S.C.A. s
552(b)(7)(D).
[15] FEDERAL COURTS
On appeal from judgment entered in Freedom of Information Act suit, although
Court of Appeals found insufficient evidence to justify upholding the "law
enforcement" exemption for portions of specified document, it would not reverse
the district court outright on the issue because of the highly sensitive nature
of much of the deleted information, but instead would remand to the district
court for further findings. 5 U.S.C.A. s 552(b)(7)(D).
[16] FEDERAL COURTS
In its classic formulation, the "comity doctrine" permits district court to
decline jurisdiction over a matter if complaint has already been filed in
another district.
See publication Words and Phrases for other judicial constructions and
definitions.
[17] FEDERAL COURTS
When considering issues raised by the comity doctrine, courts are not bound by
technicalities.
[18] FEDERAL COURTS
On appeal from judgment entered in Freedom of Information Act suit, cause would
not be remanded to district court as a result of district court's refusal,
under the doctrine of federal comity, to disclose a certain document which was
the subject of pending litigation in another district court, despite fact that
complaint in the litigation before the other court was filed after the instant
complaint; the litigation in the other district had already progressed to
judgment on the merits, appeal, and remand, and therefore, it could not be said
that efficiency demanded a remand to the district court.
[19] JUDGMENT
Plaintiff in Freedom of Information Act suit was estopped from raising the
issue of document's exempt status, since the same plaintiff had raised the same
issue in two other suits.
*741 Barry Leigh Weissman, Beverly Hills, Cal., for plaintiff-appellant.
Barbara L. Herwig, Dept. of Justice, Washington, D. C., for defendants-
appellees.
On Appeal from the United States District Court for the Central District of
California.
Before TUTTLE,[FN*] TRASK, and ANDERSON, Circuit Judges.
FN* The Honorable Elbert Parr Tuttle, Senior Circuit Judge, United States
Court of Appeals, Fifth Circuit, sitting by designation.
J. BLAINE ANDERSON, Circuit Judge:
Plaintiff Church of Scientology of California ("the Church") appeals in these
cases, consolidated on appeal for oral argument and disposition, from judgments
of the district court pertaining to certain documents requested of the
defendants under the Freedom of Information Act, 5 U.S.C. s 552. The
judgments upheld the actions of the defendants in releasing certain documents
with details excised, and their refusal to release three documents in any form.
We affirm in part and reverse in part.
I. JURISDICTION
The district court took jurisdiction pursuant to 5 U.S.C. s 552(a)(4)(B).
Our jurisdiction on appeal is based upon our authority to review the final
order of a district court, 28 U.S.C. s 1291.
II. THE PROCEEDINGS BELOW
The Church filed requests pursuant to the Freedom of Information Act, 5
U.S.C. s 552, for any documents pertaining to the Church or its founder, L. Ron
Hubbard, which were in the possession of defendant Department of Defense
("Defense"), and defendant Department of the Army ("Army"). Both defendants
complied with the requests, releasing a number of documents in their entirety,
releasing only edited versions of others, and refusing to release any portion
of certain documents.
Dissatisfied from some of the defendants' responses, the Church resorted to
legal action to compel disclosure. On September 9, 1975, the Church filed a
complaint seeking an injunction against withholding of records in Church of
Scientology v. United States Department of the Army, No. CV-75-3056-F. On
December 4, 1975, the Church filed a similar complaint in Church of Scientology
v. United States Department of Defense, No. CV-75-4072-F. On June 2, 1977, the
court below granted summary judgment for the defendants in each case.
Numerous documents were involved. The Church appeals in each case the court's
rulings on specific documents. In Department of Defense, the Church's appeal
involves three documents, two of which were released with portions excised, and
the other withheld entirely. In Department of the Army, the Church appeals on
six documents, four of which were released with portions excised, and the other
two withheld entirely. For all but two of the documents, the court below found
that release of the excised information was protected by one of several
specific exemptions to disclosure under the Freedom of Information Act. The
court withheld two documents in Department of the Army because each was the
subject of pending litigation in another federal district. Details on specific
documents will be developed in the course of this opinion.
III. THE FREEDOM OF INFORMATION ACT
The Freedom of Information Act, 5 U.S.C. s 552, mandates a policy of broad
disclosure of government documents when *742 production is properly
requested. 552(a)(3) reads:
". . . each agency, upon any request for records which (A) reasonably
describes such records and (B) is made in accordance with published rules
stating the time, place, fees (if any), and procedures to be followed, shall
make the records promptly available to any person."
When a request is made, an agency may withhold a document, or portions
thereof, only if the information contained in the document falls within one of
nine statutory exemptions to the disclosure requirement contained in s
552(b). Three of the nine section (b) exemptions are relevant to this appeal.
(b)(1) exempts from disclosure information specifically authorized by an
Executive order to be kept secret "in the interest of national defense or
foreign policy" and which is properly classified pursuant to such an order.
(b)(6) authorizes the withholding of information which would constitute a
"clearly unwarranted invasion of personal privacy" if found in "personnel and
medical files and similar files." (b)(7) exempts from disclosure "investigatory
records compiled for law enforcement purposes" if disclosure would have one of
several specified adverse effects.
[1] The nine exemptions to the Act are to be narrowly construed. See, e.
g., Bristol-Meyers Company v. F. T. C., 138 U.S.App.D.C. 22, 424 F.2d 935
(D.C.Cir. 1970), Cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52
(1970).
IV. THE STANDARD OF REVIEW
[2] An appellate court has essentially two tasks in reviewing judgments on
Freedom of Information Act issues: (1) the court must determine whether the
district judge had an adequate factual basis for his or her decision, and (2)
if an adequate factual basis was established, the court must determine whether
the decision below was clearly erroneous.
A. Factual Basis: Significance of the In Camera Inspection
[3] The burden is placed upon the government agency to establish that a
given document is exempt from disclosure. See, e. g., Environmental
Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973);
Harvey's Wagon Wheel, Inc. v. N. L. R. B., 550 F.2d 1139, 1141, 1142 (9th
Cir. 1976). In meeting its burden of proof, the government may not rely upon
"conclusory and generalized allegations of exemptions . . . ." Vaughn v.
Rosen, 157 U.S.App.D.C. 340, 346, 484 F.2d 820, 826 (D.C.Cir. 1973). On the
other hand, the government need not specify its objections in such detail as to
compromise the secrecy of the information. Id.
[4] The government may rely upon detailed affidavits or oral testimony so
long as the evidence offered enables the court to make an independent
assessment of the government's claim of exemption. Harvey's Wagon Wheel,
Inc. v. N. L. R. B., 550 F.2d 1139, 1141 (9th Cir. 1976); See also
Environmental Protection Agency v. Mink, 410 U.S. 73, 93, 93 S.Ct. 827, 35
L.Ed.2d 119 (1973). If the agency supplies a reasonably detailed affidavit
describing the document and facts sufficient to establish an exemption, then
the district court need look no further in determining whether an exemption
applies.
[5] If, however, the court finds the affidavits or testimony submitted too
generalized to establish eligibility for an exemption, it may, in its
discretion, proceed to examine the disputed documents In camera for a first-
hand determination of their exempt status. 5 U.S.C. s 552(a)(4)(B). One of
the major purposes of the 1974 amendments to the Freedom of Information Act,
P.L. 93-502, 88 Stat. 1561 (1974), was to clarify the discretion of the trial
court to conduct an In camera inspection of classified *743 government
documents.[FN1] Though the burden remains at all times on the government to
establish exempt status, In camera inspection may supplement an otherwise
sketchy set of affidavits. By first-hand inspection, the court may determine
whether the weakness of the affidavits is a result of poor draftsmanship or a
flimsy exemption claim. Irons v. Bell, 596 F.2d 468, 471, n.6 (1st Cir.
1979). Cf. Mead Data Central, Inc. v. United States Department of the Air
Force, 184 U.S.App.D.C. 350, 359, 566 F.2d 242, 251 (D.C.Cir. 1977).
FN1. The Senate Conference Report on P.L. 93-502 commented on the
significance of the mandate to conduct In camera review in this manner:
"(w)hile In camera examination need not be automatic, in many situations it
will plainly be necessary and appropriate. Before the court orders In
camera inspection, the Government should be given the opportunity to
establish by means of testimony or detailed affidavits that the documents
are clearly exempt from disclosure. The burden remains on the Government
under this law." S.Conf.Rep.No. 93-1200, 93rd Conf., 2d Sess. (1974),
Reprinted in 1974 U.S.Code Cong. & Admin.News, pp. 6267, 6285, 6287, 6288.
[6] We cannot stress strongly enough, however, that the district court's
inspection prerogative is not a substitute for the government's burden of
proof, and should not be resorted to lightly. In cases involving requests for
hundreds of documents, no trial court can reasonably be expected to wade
through a mass of exhibits In camera. We also underscore similar limitations
upon In camera inspection at the appellate level.
The Church here has argued that the government failed in either case to
present sufficiently detailed affidavits or depositions, and thereby failed to
meet its burden of proof. While we agree that some of the affidavits presented
were drafted in a somewhat conclusory fashion, we find that the trial court
properly undertook an In camera inspection of the disputed documents, and
therefore had an adequate factual basis for its decision. The small number of
documents requested, and their relative brevity, made these cases appropriate
instances for exercise of the district court's inspection prerogative. In
viewing both the edited and unedited versions of the documents, the trial court
had the opportunity to inspect specific portions which the government claimed
to be exempt from disclosure. We stress again, however, that the burden of
proof in FOIA cases remains squarely on the government, and that In camera
inspection is a procedure which the trial court need invoke only where it finds
inspection appropriate, in its discretion.
B. The "Clearly Erroneous" Standard
[7] Once we are satisfied that the trial court had an adequate basis to
decide, we are guided by the "clearly erroneous" standard in evaluating the
substance of that decision. See Mead Data Central, Inc. v. United States
Department of the Air Force, 184 U.S.App.D.C. 350, 359, 566 F.2d 242, 251, n.
13 (D.C.Cir. 1977).
V. THE ISSUE OF SEGREGABILITY
Document No. 5 in Department of Defense was withheld in its entirety, and
the district court approved the Department's action here on the basis of
exemptions (b)(1) and (b)(7)(D).
5 U.S.C. s 552(b) provides, in part, that:
"Any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are exempt
under this subsection."
Courts are, therefore, required to segregate exempt portions of documents from
those portions which are not exempt.
[8][9] The court below entered no findings on whether any specific portions
of the document might be released without endangering *744 national
security.[FN2] We find it necessary to remand to the district court for
specific findings on the issue of segregability. There is no longer any
question that the doctrine of segregability applies to the national security
exemption as well as to the exemptions under the Freedom of Information Act.
See Founding Church of Scientology of Washington, D. C., Inc. v. Bell, 195
U.S.App.D.C. 363, 603 F.2d 945 (D.C.Cir. 1979). Accordingly, it is error for a
district court to simply approve the withholding of an entire document without
entering a finding on segregability, or the lack thereof.
FN2. In its memorandum opinion, the district court made the following
findings with regard to Document No. 5:
"Document No. 5 is a 2-page naval message from Commander-in-Chief U.S.
Naval Forces Europe to U.S. Defense Attache Copenhagen, date-time group
1016442 FEB 71. This message has been entirely withheld by the defendants
and the court finds that the withholding is lawful pursuant to the
provisions of 5 U.S.C. ss 552(b)(1) and (b)(7)(D) in that it is
classified confidential and determination of this classification was made
in the interest of national defense under Executive Order No. 11652 of 8
March 1972. The message is an investigatory record compiled for law
enforcement purposes, the release of which would disclose the identity of
confidential sources by an agency conducting a lawful national security
investigation and would disclose confidential information furnished only by
confidential sources."
We remand to the district court for findings on the segregability of any
portion of Document No. 5 consistent with the exemptions to the Freedom of
Information Act. On remand, the district court should consider again all
affidavits and depositions, and perhaps call for additional testimony dealing
with any portions of the document which might be revealed without damaging
either national security or a criminal investigation. It may well be the case
that no portion of Document No. 5 may be revealed without damaging national
security. However, we cannot discern from the record whether the court actually
considered that issue.[FN3]
FN3. Even though we have been supplied with an unexpurgated copy of
Document No. 5, we decline to attempt any judgment on segregability. Not
only is our scope of review limited on appeal, but we also find it
important that evidence be submitted to the court bearing directly on the
issue of segregability. See Founding Church of Scientology of
Washington, D. C. v. Bell, 195 U.S.App.D.C. 363, 369, 603 F.2d 945, 951
(D.C.Cir. 1979).
VI. UNWARRANTED INVASION OF PERSONAL PRIVACY
For each of the remaining documents in both cases, the court below found the
exemption for material, the disclosure of which would constitute a "clearly
unwarranted invasion of personal privacy," 5 U.S.C. s 552(b)(6) applicable.
Each document had been released with portions excised, and the Church
essentially challenged the propriety of the excisions. We affirm the court's
ruling on the (b)(6) exemption for each document. For the sake of convenience,
we adopt the lower court's numbering scheme for each document.
A. The Documents
1.) Department of Defense
Document No. 3 in Department of Defense is a background investigation of a
particular individual. Among the information contained in this somewhat lengthy
document is the name of the individual under investigation, and various pieces
of information which would tend to identify the individual if revealed to the
Church. The unexpurgated document reveals details such as employment
background, a number of religious affiliations, and other information relating
to this individual's personal life. For certain of the excisions, the defendant
has claimed exemption (7)(D) only, and these will be considered later in this
opinion.
Other excisions in Document No. 3 do not deal directly with the individual
under investigation, but do reveal affiliations of various other individuals.
*745 Document No. 4 was released with eleven deletions. The document
consists of a single-page memorandum regarding an individual who was
interviewed by the Naval Investigative Service. The excised portions are either
references to the individual's name or to details which would tend to identify
the individual if revealed. The unexpurgated document reveals details of the
individual's employment history, group affiliations, and personal life.
2.) Department of the Army
Document Nos. 3, 4, 5, and 6 in Department of the Army appear to be
related documents involving a security investigation of a particular
individual. The (b)(6) exemption claim for each document largely involves
material which would tend to identify this individual.
Document No. 3 is a single-page memorandum dealing mainly with an
investigation of the Church of Scientology and potential prosecutions of the
Church and its leadership. The only information deleted consists of the names
of the individuals under investigation, an interviewee, and minor details
tending to identify each of them.
Document No. 4 appears to be a general background memorandum dealing with the
doctrine of Scientology. The only deletions are references to names of two
individuals who were reportedly associated with the Church, and some details
tending to identify each of them. As a whole, the unexpurgated document tends
to reveal details of those individuals' affiliations, both religious and
political, and of their employment background.
Document No. 5 is a report of an interview with the subject of the
investigation, consisting of two pages. Large chunks of this document have been
deleted, all of it information tending to identify the individual. The
information reveals details such as educational background, religious
affiliations, employment history, and some allusions to emotional make-up.
Document No. 6 is the full text of the interview referred to in Document No.
5. It largely elaborates on details contained in Document No. 5, and refers to
a wide range of information dealing with the subject individual's private life.
The bulk of the interview was excised.
B. The Privacy Exemption
The legislative history of 5 U.S.C. s 552(b)(6) is sparse, but instructive.
The exemption for "personal and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy"
has remained virtually unchanged since the passage of the original version of
the Freedom of Information Act in 1966. P.L. 89-487, 80 Stat. 250 (1966). House
Report No. 1497 noted that governmental agencies such as the Veterans
Administration, the Department of Health, Education, and Welfare, and others
had accumulated large quantities of files which contained intimate personal
details of people's private lives. The Report explained that:
"The limitation of a 'clearly unwarranted invasion of personal 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."
Reprinted at 1966 U.S.Code Cong. and Admin.News, pp. 2418, 2428.
The concept of a "proper balance" between competing privacy and disclosure has
been taken literally by the courts. In Department of the Air Force v. Rose,
425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), the Supreme Court noted that
a "balancing" was what Congress had in mind when it created exemption (b)(6).
Lower federal courts have been more explicit in developing a balancing test
under (b)(6). In Getman v. N. L. R. B., 146 U.S.App.D.C. 209, 450 F.2d 670
(D.C.Cir. 1971), the court held that, on balance, the names and telephone
*746 numbers of persons entitled to vote in a union election were not exempt
under (b)(6). The Getman court balanced the public interest in disclosure, the
potential harm from disclosure, the minimal nature of the privacy intrusion,
and the lack of any alternative means of obtaining the information. See 146
U.S.App.D.C. 209, 213, 214, 215, 450 F.2d 670, 674, 675, 676. The court in
Rural Housing Alliance v. United States Department of Agriculture, 162
U.S.App.D.C. 122, 498 F.2d 73 (D.C.Cir. 1974), spelled out the balancing test
for exemption (6) in detail:
"(Discussing Getman, supra ) Specifically we suggested that in balancing
interests the court should first determine if disclosure would constitute an
invasion of privacy, and how severe an invasion. Second, the court should weigh
the public interest purpose of those seeking disclosure, and whether other
sources of information might suffice. Such balancing is unique for exemption 6;
normally no inquiry into the use of information is made, and the information is
made available to any person."
162 U.S.App.D.C. 122, 126, 498 F.2d 73, 77.
The weight of the authority among the various circuits is clearly in accord
with the "balancing" rationale. See Pacific Molasses Co. v. N. L. R. B., 577
F.2d 1172 (5th Cir. 1978) (union preference cards signed by employees exempt);
Committee on Masonic Homes, etc. v. N. L. R. B., 556 F.2d 214 (3d Cir.
1977) (union preference cards exempt since little public interest in disclosure
and great potential for "chilling effect" in exercise of union privileges if
disclosure takes place); Columbia Packing Co., Inc. v. U. S. Dept. of
Agriculture, 563 F.2d 495 (1st Cir. 1977) (privacy interest in personnel files
outweighed by public interest in performance of government meat inspectors
suspected of accepting bribes); Campbell v. United States Civil Service
Commission, 539 F.2d 58 (10th Cir. 1976) (privacy interest in personnel files
of government employees who were erroneously classified not outweighed by
public interest in smooth operation of Civil Service Commission); Wine
Hobby, U. S. A. v. United States Internal Revenue Service, 502 F.2d 133 (3d
Cir. 1974) (forms filed by persons seeking "family use" exception to alcohol
production taxes exempt when balanced against the interest of a private firm in
obtaining names of these persons for mailing list advertisement purposes). But
see Robles v. E. P. A., 484 F.2d 843 (4th Cir. 1973).
[10] The case law thus identifies four factors to be balanced in weighing a
claim of exemption for a "clearly unwarranted invasion of personal privacy":
(1) the plaintiff's interest in disclosure; (2) the public interest in
disclosure; (3) the degree of the invasion of personal privacy; and (4) the
availability of any alternative means of obtaining the requested information.
In weighing the factors, we keep in mind that the invasion of privacy must be
"clearly" unwarranted.
[11] For the privacy exemption to be applicable, the information must be
contained in "personnel (or) medical files (or) similar files." 5 U.S.C. s
552(b)(6). A "similar" file is defined simply as a file which contains
information similar to that found in a standard personnel file. See Pacific
Molasses Co., Inc. v. N. L. R. B., 577 F.2d 1172 (5th Cir. 1978) (information
contained on union preference cards signed by employees found to be of a
sufficiently "personal" nature to qualify the cards as "similar" files);
Rural Housing Alliance v. United States, 162 U.S.App.D.C. 122, 498 F.2d 73
(D.C.Cir. 1974) (government report on housing discrimination found to qualify
as a "similar file" because of information concerning marital status,
legitimacy of children, medical condition, etc. of individual homeowners).
C. Application of the Exemption
[12] On the threshold issue of whether the documents at issue here qualify
as "personnel," *747 "medical," or "similar" files, we find that each of the
documents may be classified as protected files. Each contains a sufficient
amount of personal information to merit consideration for exemption (6) status.
Applying the balancing test to the portion of Document Nos. 3 and 4 in
Department of Defense for which exemption (6) is claimed, we find no error
committed. The Document No. 3 security background information involves various
details of employment and personal history of the subject individual. Release
of the bulk of the exempt portions of this document would tend to identify the
individual [FN4] and to reveal details of this individual's life which are
clearly exempt under current case law. Other deleted portions of Document No. 3
would tend to identify certain individuals who are associated with the
Church, and various positions which they have held in the Church and
affiliated organizations. On balance, we cannot say that the court erred in
upholding the government's excision of the information pertaining to Church
personnel. A reasonable person would be very likely to find that disclosure of
religious affiliations and activities would constitute an invasion of his or
her privacy. Additionally, the Church can obtain this information simply by
checking its own membership and personnel files. There is no reason in this
case to order public disclosure of such information. Disclosure of Document No.
4 would clearly constitute an unwarranted invasion of personal privacy. The
deleted information pertains only to the name, address, and employment of a
certain individual, and also describes an incident in the individual's life
that the individual would apparently prefer not to disclose publicly. There
could be no legitimate public purpose served by disclosure of this information.
FN4. The Church cites Ferguson v. Kelley, 448 F.Supp. 919
(D.C.D.C.1978), for the proposition that there is no primary interest in
disclosure of a name. The case is not merely so broad, however. It merely
holds that the names of FBI agents are not barred from disclosure unless
some threat to personal safety may be discerned.
The Church's purpose in seeking the excised information in Document Nos. 3
and 4 can only be surmised, but must be considered under current case law. In
all likelihood, the Church's purpose in seeking government files pertaining to
its activities is to discover whether it is under any investigation, or what
sort of information the government might be accumulating for purposes which the
Church may or may not consider legitimate. The Church may harbor some very real
fears as to the motives of various agencies in gathering such information. The
information which has been released in each of the two Department of Defense
cases adequately apprises the Church of the type of information gathered. In
neither case do we find that any more information than necessary to protect the
privacy of the individuals involved has been excised.
Document Nos. 3, 4, 5 and 6 in Department of the Army were also properly
excised. The four documents are interrelated as pertinent to the investigation
of one individual. In no instance has any more information than is necessary to
protect the identity, employment, and private life of the subject individual
been excised. The factors considered with regard to the documents in
Department of Defense are also relevant here. The Church's legitimate
purposes in seeking the information are clearly outweighed by the subject
individual's privacy interest.
Document No. 4 in Department of the Army bears special consideration
because some of the deleted information does not relate to the subject
individual, but to members of the Church. Again, the balance strikes in favor
of the privacy interest. There is no purpose to be served by disclosure, and
the Church may obtain the information by other means, such as consulting its
own records. If any individual members *748 of the Church fear that they
have been subjected to surveillance, it is they who should seek disclosure, and
not the Church.
VII. INVESTIGATORY FILES COMPILED FOR A LAW ENFORCEMENT PURPOSE
Certain portions of Document No. 3 in Department of Defense were excised on
the authority of exemption (b)(7)(D), the "law enforcement" exemption to
disclosure under the Freedom of Information Act. In its entirety, (b)(7)(D)
exempts:
"investigatory records compiled for law enforcement purposes, but only to the
extent that the production of such records would (D) disclose the identity of a
confidential source and, in the case of a record compiled by a criminal law
enforcement authority in the course of a criminal investigation, or by an
agency conducting a lawful national security intelligence investigation,
confidential information furnished only by the confidential source, . . ."
5 U.S.C. s 552(b)(7)(D).
[13] The threshold issue in any exemption (7) claim is whether the agency
involved may properly be classified as a "law enforcement" agency. The term
"law enforcement purpose" has been construed to require an examination of the
agency itself to determine whether the agency may exercise a law enforcement
function. Irons v. Bell, 596 F.2d 468, 474 (1st Cir. 1979). An agency which
has a clear law enforcement mandate, such as the FBI, need only establish a
"rational nexus" between enforcement of a federal law and the document for
which an exemption is claimed. Id. at 472. However, an agency which has a
"mixed" function, encompassing both administrative and law enforcement
functions, must demonstrate that it had a purpose falling within its sphere of
enforcement authority in compiling the particular document.[FN5] Id. at 473.
See also Weissman v. Central Intelligence Agency, 184 U.S.App.D.C. 117, 565
F.2d 692 (D.C.Cir. 1977).
FN5. The Department of Defense has cited Koch v. Department of Justice,
376 F.Supp. 313 (D.C.D.C.1974), in which files similar to those at issue
here were held to have been properly withheld under exemption (7). Koch,
however, is not persuasive because the agency involved was the FBI, for
whom a separate showing of "law enforcement purpose" is unnecessary.
Citation to Koch appears to beg the primary question here, namely, whether
the Department of Defense may claim a law enforcement purpose in the first
instance.
[14] In the case of Document No. 3, we do not find sufficient evidence in
the record to warrant a finding that the Naval Investigative Service (NIS)
of the Office of Naval Intelligence had a law enforcement purpose based upon
properly delegated enforcement authority. While the NIS was clearly within its
rights to conduct the investigation which produced Document No. 3, there is no
showing that the investigation involved the enforcement of any statute or
regulation within the authority of the NIS. In determining whether a "law
enforcement purpose" is present, courts must look to the purpose behind the
compilation of the document. Rural Housing Alliance v. United States
Department of Agriculture, 162 U.S.App.D.C. 122, 129, 130, 498 F.2d 73, 80, 81
(D.C.Cir. 1974). The agency must show that the files " . . . were compiled For
adjudicative or enforcement purposes." Id., at 129, 498 F.2d at 80.
(Emphasis in the original). Generally, files such as "internal audits" compiled
simply to determine whether an agency's internal operations comport with
statute or regulation do not qualify. Id. at 130, 498 F.2d at 81. See also
Center for National Policy Review on Race and Urban Issues v. Weinberger,
163 U.S.App.D.C. 368, 502 F.2d 370 (D.C.Cir. 1974).
In the case of Document No. 3, exemption (7)(D) only is claimed for a passage
which appears approximately halfway down page 1, following an unexcised
sentence which reads, " 'the HUBBARD ASSOCIATION OF SCIENTOLOGISTS (HASI),
where Subject lists attendance, is a black-mailer's *749 paradise.' "
Deleted is the sentence immediately following "black-mailer's paradise," and a
short phrase preceding the unexcised sentence which identifies the source of
the information. The same passage is repeated on page 3, page 6, and again on
three supplementary pages which are copies of an investigation request. (7)(D)
is also claimed for a passage at the top of page 4, two deletions at the bottom
of page 4, two deletions at the top of page 5, and one deletion midway through
page 7. In addition, one seven-page set of attachments was deleted in its
entirety, and it was not clear whether exemption (b)(7) was claimed for the
attachment set. We surmise that (b)(7) was the basis for deletion of the
attachment, without implying any judgment on the correctness of such an
assertion.
[15] While we find insufficient evidence to justify upholding exemption
(b)(7) for those portions of Document No. 3 mentioned above, we do not reverse
the district court outright on this issue. Much of the deleted information is
of a highly sensitive nature, and we believe it appropriate to remand for
further findings. On remand, the district court should inquire into questions
of NIS' law enforcement authority, and whether the document was compiled for a
law enforcement purpose. Any findings on these issues should be as detailed as
possible without compromising the secrecy of the information. The court should
also give serious consideration to the applicability of any other exemptions.
[FN6]
FN6. We have also remanded Document No. 5 in Department of Defense for
further consideration on the segregability issue under exemption (b)(1).
Should the court rule adversely to the government on that question, it
should also consider exemption (b)(7) for Document No. 5. The possibility
of revelation of a confidential source was apparently critical for the
government in determining that no portion of the document could be
segregated. See Affidavit of Rear Admiral B. R. Inman, U. S. Navy, Director
of Naval Intelligence and Commander, Naval Intelligence Command, p. 4 (C.R.
222, 225).
VIII. COMITY
The district court declined to release Document No. 2 in Department of the
Army because that document was the subject of pending litigation in federal
district court for the District of Columbia, The Founding Church of Scientology
of Washington, D.C. v. Edward H. Levy, et al., Civil Action No. 75-1577. That
litigation has since progressed considerably. On January 24, 1978, the D.C.
district court granted the defendants' motion for summary judgment. On June 25,
1979, the court of appeals for the District of Columbia Circuit handed down its
decision in Founding Church of Scientology of Washington, D.C. v. Bell, 195
U.S.App.D.C. 363, 603 F.2d 945, reversing the district court's decision, and
remanding for further consideration.
[16] In deferring to the jurisdiction of another district court, the court
below invoked the doctrine of federal comity, a discretionary doctrine which
permits one district to decline judgment on an issue which is properly before
another district. See Kerotest Manufacturing Company v. C-O-Two Fire
Equipment Company, 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1952). In its
classic formulation, the comity doctrine permits a district court to decline
jurisdiction over a matter if a complaint has already been filed in another
district. E. g., Great Northern Railway Co. v. National Railroad Adjustment
Board, 422 F.2d 1187, 1193 (7th Cir. 1970). The Church's complaint in
Department of the Army was filed on September 9, 1975. The complaint in the
D.C. litigation was filed on September 26, 1975. Technically, therefore, the
comity doctrine is inapplicable and the court below improperly refused to
determine the exempt status of Document No. 2.
[17] When considering issues raised by the comity doctrine, however, courts
are not bound by technicalities. The Supreme Court in Kerotest Manufacturing
Company, supra, noted that the handling of multiple *750 litigation
involving the same subject matter does not lend itself to " . . . rigid
mechanical solution. . . . " 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed.
200. Citing Kerotest Manufacturing, the Eighth Circuit observed in
Florida v. United States, 285 F.2d 596 (8th Cir. 1960) that "(t)here is no
rigid or inflexible rule for determining priority of cases pending in federal
courts involving the same subject matter."
[18] The purpose of the comity principle is of paramount importance. The
doctrine is designed to avoid placing an unnecessary burden on the federal
judiciary, and to avoid the embarrassment of conflicting judgments. Great
Northern Railway Co. v. National Railroad Adjustment Board, 422 F.2d 1187,
1193 (7th Cir. 1970). Comity works most efficiently where previously-filed
litigation is brought promptly to the attention of the district court, and the
court defers. In the present case, the litigation in the D.C. Circuit has
already progressed to a judgment on the merits, an appeal, and a remand. While
judicial economy would have been best served by the district court in D.C.
deferring to the Central District of California at the outset, we cannot now
say that efficiency demands that we remand to the district court below. Under
the circumstances, the goal of judicial efficiency will be best met if we
overlook the "first to file" rule, and defer to the litigation in progress in
the D.C. Circuit.
The need for fashioning a flexible response to the issue of concurrent
jurisdiction has become more pressing in this day of increasingly crowded
federal dockets. Our own circuit recently addressed this issue in another
context. Speaking in Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979), we
noted that:
" . . . increasing calendar congestion in the federal courts makes it
imperative to avoid concurrent litigation in more than one forum whenever
consistent with the rights of the parties. A court may choose not to exercise
its jurisdiction when another court having jurisdiction over the same matter
has entertained it and can achieve the same result."
Id. at 893.
We emphasize that the "first to file" rule normally serves the purpose of
promoting efficiency well and should not be disregarded lightly. Cf. Motor
Vessels Theresa Ann v. Kreps, 548 F.2d 1383, 1384 (9th Cir. 1977).
Circumstances and modern judicial reality, however, may demand that we follow a
different approach from time to time, as we do in the present case.[FN7]
FN7. The Church characterized the district court's deference to concurrent
litigation on both Documents No. 1 and No. 2 in Department of the Army
as an impermissible judicial creation of a new exemption to the Freedom of
Information Act's disclosure requirement. We disagree. While it is true
that the Act forbids the equitable creation of exemptions which are not
specified, Wellman Industries, Inc. v. N. L. R. B., 490 F.2d 427 (4th
Cir. 1974), it does not prohibit the application of traditional judicial
doctrines to the overall administration of the Act. See Renegotiation
Board v. Bannercraft Co., 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974).
Application of the comity doctrine where the plaintiff is pursuing its
rights under the Act in another forum, and where the plaintiff is afforded
a full and fair opportunity to be heard in the other forum, is not
inconsistent with the purpose of the Act. Cf. Consumers Union of U. S.
v. Consumer Product, etc., 192 U.S.App.D.C. 93, 590 F.2d 1209 (D.C.Cir.
1978); Robertson v. Department of Defense, 402 F.Supp. 1342
(D.C.D.C.1975).
IX. COLLATERAL ESTOPPEL
[19] With regard to Document No. 1 in Department of the Army, the
district court abstained from ruling because the document was the subject of
concurrent litigation in the district court for the District of Columbia in
Church of Scientology of California v. Department of the Air Force, et al.,
Civil Action No. 76-1008. On April 12, 1978, the court ruled in Department
of the Air Force that Document No. 1 was exempt from disclosure. We conclude
that the Church is estopped from raising the issue of the document's exempt
status in this litigation.
There really is no question that the same issue was involved in Department
of the Air Force, namely, the exempt status of Document *751 No. 1. Nor is
there any question that the Church was the plaintiff in both cases. Under such
circumstances, the issue of exemption cannot be relitigated. See, e. g.,
Parklane Hosiery Co. v. Shore, 439 U.S. 332, 99 S.Ct. 645, 58 L.Ed.2d
552, 559, n. 5 (1979).
Both cases AFFIRMED in part, and REVERSED and REMANDED in part, for further
proceedings consistent with this Opinion.