The second part of clause (D) deals with information provided by a confidential source. Generally speaking, with respect to civil matters, such information may not be treated as exempt on the basis of clause (D), except to the extent that its disclosure would reveal the identity of the confidential source. However, with respect to criminal investigations conducted by a "criminal law enforcement authority" and lawful national security intelligence investigations conducted by any agency, any confidential information furnished only by a confidential source is, by that fact alone, exempt. (See, e.g., 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).)

According to the Conference Report (p. 13), "criminal law enforcement authority" is to be narrowly construed and includes the FBI and "similar investigative authorities." It would appear, then, that "criminal law enforcement authority" is limited to agencies-or agency components-whose primary function is the prevention or investigation of violations of criminal statutes (including the Uniform Code of Military Justice), or the apprehension of alleged criminals. There may be situations in which a criminal law enforcement authority, e.g., the FBI or a State authority obtains confidential information from a confidential source in the course of a criminal investigation and then provides a copy to another Federal agency. In the event that a Freedom of Information Act request is directed to the latter agency, nondisclosure based on the second part of clause (D) is proper, regardless of whether the requested agency is itself a "criminal law enforcement authority." What determines the issue is the character of the agency that "compiled" the record.

With respect to that portion of the second part of clause (D) dealing with national security intelligence investigations, the Conference Report states (p. 13) that it applies not only to such investigations conducted by criminal law enforcement authorities but to those conducted by other agencies as well. According to the report, "national security" is to be strictly construed and refers to "military security, national defense, or foreign policy"; and "intelligence" is intended to apply to "positive intelligence-gathering activities, counter-intelligence activities, and background security investigations by [authorized] governmental units * *." Ibid.

A further qualification contained in this second part of clause (D) is that the confidential information must have been furnished "only by the confidential source." In administering the Act, it is proper to consider this requirement as having been met if, after reasonable review of the records, there is no reason to believe that identical information was received from another source.

(E) DISCLOSURE OF TECHNIQUES AND PROCEDURES

Clause (E), derived without change from Senator Hart's amendment, exempts records to the extent that release would "disclose investigative techniques and procedures."

The legislative history indicates that this exemption does not apply to routine techniques or procedures which are generally known outside the Government. (See, e.g., Conf. Rept. p. 12.) For example, the exemption does not protect the disclosure of such procedures as ballistics tests and fingerprinting, though it would shield new developments or refinements in those procedures. (Of course, the results of such generally known procedures may be exempt on another ground.) Administrative staff manuals and instructions, covered by 5 U.S.C. 552 (a) (2), are not generally protected by this clause (Conf. Rept. p. 13), although the exempt status of material otherwise covered by clause (E) is not affected by its inclusion in such a manual or instruction.

(F) ENDANGERING LAW ENFORCEMENT PERSONNEL

Clause (F), which was added by the Conference Committee, exempts material whose disclosure would "endanger the life or physical safety of law enforcement personnel." (See, e.g., 120 Cong. Rec. H 10003–04 (Oct. 7, 1974) (letter of chairmen of conferees).) The legislative record contains little discussion of this provision.

Clause (F) might apply, for example, to information which would reveal the identity of undercover agents, State or Federal, working on such matters

as narcotics, organized crime, terrorism, or espionage. It is unclear whether the phrase "law enforcement personnel" means that the endangered individual must be technically an "employee" of a law enforcement organization; arguably it does not. It is clear, however, that the language of clause (F) cannot be stretched to protect the safety of the families of law enforcement personnel or the safety of other persons. Nonetheless, it is safe to proceed on the assumption that Congress did not intend to require the release of any investigatory records which would pose a threat to the life or physical safety of any person; perhaps clause (A) (interference with law enforcement) would be liberally construed to cover a request which involves such a threat.

IMPLEMENTATION OF EXEMPTION 7

The prior discussion deals with the grounds for nondisclosure that are specified in amended section 552(b) (7). Application of these grounds by agency personnel within the available time limits will often present great difficulty, especially when the request pertains to a large file. One means by which the agency might seek to assist its personnel-and the public-is the development of guidelines regarding the manner of applying the exemption 7 clauses to standard categories of investigatory records in its files.

The general policy underlying the seventh exemption is maximum public access to requested records, consistent with the legitimate interests of law enforcement agencies and affected persons. (See, e.g., 120 Cong. Rec. S 9330 (May 30, 1974) (Senator Hart).) A central issue which must be faced in every case is the type of showing needed to establish that disclosure "would" lead to one of the consequences enumerated in clauses (A) through (F). The President and some opponents of the bill voiced concern that "would" connote a degree of certainty which in most cases it would be impossible to establish. (See Weekly Compilation of Presidential Documents 1318 (1974); 120 Cong. Rec. S 19814 (Nov. 21, 1974) (Senator Hruska); 120 Cong. Rec. S 19818 (Nov. 21, 1974) (Senator Thurmond).) The bill's proponents, including the sponsor of the amendment, did not accept the interpretation that would result in such a strict standard. (See, e.g., 120 Cong. Rec. H 10865 (Nov. 20, 1974) (Congressman Moorhead); 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).) This legislative history suggests that denial can be based upon a reasonable possibility, in view of the circumstances, that one of the six enumerated consequences would result from disclosure.

A practical problem which can be predicted is that agency personnel will sometimes be uncertain whether they have sufficient information to make the necessary determination as to the likelihood of one of the six consequences justifying nondisclosure. This raises the question whether it is necessary to go beyond the records themselves and in effect to conduct an independent investigation to determine, for example, what privacy or confidentiality interests are involved. This question cannot be answered in the abstract, for its resolution will depend substantially upon the particular circumstances. Since the six clauses in the exemption are to be interpreted in a flexible manner, see p. 8 above, it should usually be sufficient to rely upon conclusions which-taking due account of such factors as the age of the records and the character of law violation involved-can reasonably be drawn from the records themselves.

It is clear that implementation of the amended exemption 7 will frequently involve a substantial administrative burden. It was not, however, the intent or the expectation of the Congress that this burden would be excessive. (See, e.g., 120 Cong. Rec. S 19808 (Nov. 21, 1974) (Senator Kennedy); 120 Cong. Rec. C 19812 (Nov. 21, 1974) (Senator Hart).) If, therefore, a law enforcement agency (the category of agencies principally affected) regularly finds that its application of these provisions involves an effort so substantial as to interfere with its necessary law enforcement functions, it should carefully re-examine the manner in which it is interpreting or applying them. Needless to say, burden is no excuse for intentionally disregarding or slighting the requirements of the law, and, where necessary, additional resources should be sought or provided to achieve full compliance.

21-656 0- 78 - 45

Court Cases

[Exhibit 82]

BALDWIN V. FINNEY

(Civ. No. 75-1221 (D.D.C. Oct. 8, 1975))

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CIVIL ACTION NO. 75-1221

ROY BALDWIN, ET AL., PLAINTIFFS

VS.

JERVIS FINNEY, ET AL., DEFENDANTS

MEMORANDUM ORDER

This matter came before the Court in an oral hearing, Monday, October 6, 1975, on plaintiffs' Motion to Require Detailed Justification, Itemization and Indexing as outlined in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), defendants' opposition thereto and defendants' Motion for Summary Judgment, Pursuant to the Freedom of Information Act, 5 U.S.C. 552, plaintiffs have requested "any and all materials in the possession of the Department of Justice or the United States Attorney for the District of Maryland, pertaining to the investigation of Spiro T. Agnew which led to his plea of nolo contendere to one count of Federal income tax evasion on October 10, 1973."

Defendants opposed the plaintiffs' motion as premature, arguing that defendants' Motion for Summary Judgment would provide the sought after detailed justification. On September 30, 1975, defendants submitted said motion in which the accompanying memorandum and affidavit asserted in conclusory terms the applicability of 5 U.S.C. 552(b) (7), the investigatory files exemption, to bar the release of all the documents requested. The basis for defendants' argument is that several continuing criminal investigations are pending in Maryland and that the requested documents will either on their face disclose the documents' applicability to the pending investigation, or at a later time may or may not become relevant to the ongoing proceedings.

In the past, Courts have afforded broad protection to investigatory files compiled for law enforcement purposes whether the adjudication was imminent or likely, or whether the files were open or closed. Center for National Policy Review on Race and Urban Issues, et al. v. Weinberger, 502 F.2d 370, 373 (D.C. Cir. 1974); Weisberg v. Department of Justice, 489 F.2d 1195 (D.C. Cir. 1973), cert. denied, 416 U.S. 993 (1974); Aspin v. Department of Defense (Laird), 491 F.2d 24 (D.C. Cir. 1973).

The 1974 amendments to the Freedom of Information Act, however, indicate an intention to continue the broad protection accorded open files but to limit nondisclosure of closed files to the extent set forth in 5 U.S.C. 552(b) (7) (B)(F).

However, as equally clear in the law as is the sensitivity with which this Court should handle investigatory documents, is the dictate that the government may not rest on conclusory allegations to support its claimed exemptions. This is particularly true where the case was closed immediately after the plea. Without some form of indexing, itemization or detailed justification, the Court is unable to intelligently assess the appropriateness of withholding requested documents. Vaughn v. Rosen, supra; Cuneo v. Schlesinger, 484 F.2d 1086 (D.C. Cir. 1973), cert. denied sub nom, 415 U.S. 977 (1974). See also Schwartz v. IRS. 511 F.2d 1303 (D.C. Cir. 1975); Ash Grove Cement Company v. FTC 51 F.2d 815 (D.C. Cir. 1975); Pacific Architects & Engineers, Inc. v. Renegotiation Board, 505 F.2d 383 (D.C. Cir. 1974). Therefore, as presently submitted, defendants' motion is insufficient.

In resolving the problem of the government's broad assertion of Exemption 7, 5 U.S.C. 552 (b) (7) (A) as pertaining to all the requested documents, the Court divided the documents into two categories.

The first category dealt with those documents which are not exempt because they are a matter of public record or are available by law to a party. During the course of the proceedings against Mr. Agnew, certain documents by necessity had to be made available or the contents divulged to the parties and the Court in order that the defendant and the Court could be apprised of the charge to which Mr. Agnew pled nolo contendere and assured during the proffer of the

government's evidence that a prima facie case had been established to warrant the plea and its acceptance thereof by the Court. F.R.Crim.P. Rule 11. The Court orders the disclosure of these items within ten days from the date of this Order. As to the remaining documents which either go to support the additional charges or are otherwise encompassed in plaintiffs' request, a detailed justification accompanying the contested papers is ordered to be filed with this Court for its consideration within 45 days of this Order. Vaughn v. Rosen, supra. It is so ordered.

Dated: October 8, 1975.

JUNE L. GREEN, U.S. District Judge.

[Exhibit 82a]

BALDWIN V. FINNEY

(Civ. No. 75-1221 (D.D.C. Dec. 23, 1975))

UNITED STATES DISTRICT Court for THE DISTRICT OF COLUMBIA

CIVIL ACTION NO. 75-1221

ROY BALDWIN, ET AL. PLAINTIFFS

VS.

JERVIS FINNEY, ET AL., DEFENDANTS

MEMORANDUM ORDER

Plaintiffs in this action are seeking the files relating to the investigation of former Vice President Spiro T. Agnew which led to his plea of nolo contendere to one count of Federal income tax invasion on October 10, 1973.

By order of this Court on October 8, 1975, a timetable was ordered. Documents which by necessity had to be made available or the contents divulged to the parties and the Court in order to assure that a factual basis existed for the plea of nolo contendere were to be submitted within ten days. A detailed justification for withholding the remaining documents was to be filed within forty-five days.

In response to the first part of the October 8th Order, the defendants filed a report to the Court which contained the forty page narrative which had been presented to the United States District Court in Maryland to comply with F.R.Crim.P. Rule 11. Plaintiffs responded with a motion for sanctions since the document was something that had been a matter of public record for two years. As to the withholding of the remaining documents, the defendants filed a renewed motion for summary judgment with a fourth affidavit from Jervis Finney. Plaintiffs then filed a second motion for sanctions along with their opposition to defendants' motion.

At the hearing held on December 15, 1975, the Court specifically found that the first four affidavits submitted by Mr. Finney were too conclusory to be of use. All four, which are essentially identical in substance, assert that the materials are part of a continuing and ongoing investigation. The Court further found that Mr. Finney had not exercised good faith in the course of the instant action, since there would have to be a spectrum of possible classifications as concerns materials in the Agnew investigation because Mr. Agnew's case closed with his sentencing. There may well be documents which were used in the Agnew prosecution which will also relate to the present and future investigations. These certainly would be exempt. 5 U.S.C. § 552(b)(7) (A). However, as suggested in the defendants' October 20, 1975 report to the Court, there are documents which relate only to Mr. Agnew or to witnesses who were given immunity from prosecution. The exemption claimed by the defendants would appear inapplicable to these items. In light of the above, the Court ordered the defendants to produce a meaningful response by December 22nd and indicated the motions for sanctions would be heard on that date.

In response to the Court's Order, the defendants submitted a fifth Finney affidavit which sought to provide detailed justification for withholding the statements made by witnesses on which this Court focused during the December 19th hearing.

As this Court has previously indicated, the 1974 amendments to the Freedom of Information evidence a desire on the part of Congress to turn the tide of the law as concerns closed investigatory files. Prior to this time courts have afforded

broad protection to investigatory files, irrespective of their status. Weisburg v. Department of Justice, 489 F.2d 1195 (1973) (en banc) cert. denied, 416 U.S. 993; Aspin v. Department of Defense, 491 F.2d 24 (1973) and their progeny. Therefore, the plaintiffs who are acting as concerned citizens interested in the investigation of the former Vice President of the United States are entitled to any documents which do not fall within the exemptions of the Act concerning closed files. 5 U.S.C. § 552(b) (7) (B) to (F).

Although Mr. Finney's affidavit attempted to supply the Court with specific justification, it is clear that to balance on the one hand unwarranted public disclosure of records which may properly be exempt with the necessity that what is disclosable will be released, the Court must examine a portion of the documents in camera. Ash Grove Cement Co. v. FTC, 511 F.2d 815 (D.C. Cir. 1975).

In view of the foregoing, the Court will not order indexing at this time pending the expected good faith response of the defendants to this Order, and will withhold ruling on the outstanding motions until the review of documents has been completed.

In accordance with the above, it is by the Court this 23rd day of December 1975,

Ordered that defendants submit for in camera inspection all material referred to in the fifth affidavit of Jervis Finney filed December 19, 1975, by January 9, 1975; and it is further

Ordered that a meaningful and representative sample of materials as delineated in the first part of the Order of October 8th be submitted to the Court by January 23, 1976; and it is further

Ordered that a meaningful and representative sample of the materials described in the second part of the October 8th Order be submitted to the Court by January 30, 1976.

Claimed justifications for withholding the documents submitted with the materials need not be served on plaintiffs at this time.

JUNE L. GREEN, U.S. District Judge.

[Exhibit 82b]

BALDWIN V. FINNEY

(Civ. No. 75-1221 (D.D.C. Jan. 13, 1976))

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CIVIL ACTION NO. 75-1221

ROY BALDWIN, ET AL., PLAINTIFFS

VS.

JERVIS FINNY, ET AL., DEFENDANTS

MEMORANDUM ORDER

On December 23, 1975, the Court ordered the defendants to submit for in camera inspection the four witness statements referred to in the fifth affidavit of Jervis Finney by January 9, 1975.

The Court has reviewed the material and determined that because of the continuing investigation and prosecutions, two of the witness statements may be withheld in toto at this time. 5 U.S.C. § 552 (b) (7) (A). The remaining two statements shall be released with the names of third parties deleted. There is no ongoing investigation or prosecution as to the matters contained therein. Deletions were made where disclosure of information might prejudice the rights of others to a fair trial, where an invasion of privacy might occur or where the ongoing investigations might be compromised. 5 U.S.C. § 552(b)(7) (A), (B) and (C). See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974).

It is, therefore, by the Court this 13th day of January 1976,

ORDERED that two witness statements, the identity of which has been indicated to the defendants, should be and the same hereby are released as amended by the Court; and it is further

ORDERED that compliance with this Order be stayed for five days to permit notice of an appeal, if desired.

JUNE L. GREEN, U.S. District Judge.