While this proposal to afford blanket protection to all open files was included in the record during Senate debate,12/ it was ultimately rejected in favor of the language proposed by

Senator Hart.

Moreover, in overruling the court decisions specifically referred to during the floor debates, Congress likewise made it clear that it disapproved the "open file" interpretation adopted by the court below. In one of these earlier cases, Ditlow v. Brinegar, supra, this court held that correspondence between

11/ Hearings before the Subcommittees on Administrative Practice and Procedure and Separation of Powers of the Committee on the Judiciary, United States Senate, and the Subcommittee on Intergovernmental Relations of the Committee on Government Operations, 93d Cong., 1st Sess. (Vol. II) 227 (1973). The Attorney General's proposal read in full:

The provisions of this section shall not be applicable
to matters that are. . . (7), investigatory files com-
piled for law enforcement purposes except to the extent
available by law to a party other than an agency; Provided,
That this exemption shall be invoked only while a law
enforcement proceeding or investigation to which such files
pertain is pending or contemplated, or to the extent that
the production of such files would (A) interfere with
law enforcement functions designed directly to protect
individuals against violations of law, (B) deprive a
person of a right to a fair trial or an impartial adjudi-
cation, (C) disclose the identity of an informant, (D)
disclose investigatory techniques and procedures, (E) damage
the reputation of innocent persons, or (F) jeopardize law
enforcement personnel or their families or assignments.

12/ See 120 Cong. Rec. S 9332 (daily ed. May 30, 1974).

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the National Highway Traffic Safety Administration and auto

mobile manufacturers in connection with open or "pending safety defect investigations" constituted an investigatory file that was

entirely exempt from disclosure under 5 U.S.C. § 552(b)(7).
494 F.2d at 1073-4. Similarly, in Center for National Policy
Review on Race and Urban Issues v. Weinberger, supra, the Court
concluded that "open and active files" involving agency review
of public school segregation were protected in their entirety
under exemption 7 of the FOIA. 502 F.2d at 372. During Senate
consideration of exemption 7 in 1974, however, Senator Hart was
specifically asked whether the amendment he proposed would over-
ride the decisions in the Ditlow and Center for National Policy
Review cases, among others. Senator Hart responded:

The Senator from [Massachusetts] is correct. That
is its purpose.
That was the purpose of Congress
in 1966, we thought, when we enacted this. Until
about 9 or 12 months ago, the courts had consist-
ently approached it on a balancing basis, which
is exactly what this amendment seeks to do. 120
Cong. Rec. S 9336 (daily ed., May 30, 1974).

Exemption 7(A) as presently enacted thus requires a case-by-case
evaluation of requested documents, even those contained in open
or pending files.

The conclusion that Congress rejected the open/closed file distinction created by the district court is further demonstrated by the legislative history surrounding Congress' override of

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President Ford's veto of the 1974 amendments to the FOIA. In his veto message to Congress on October 17, 1974, President Ford objected that the confidentiality of FBI and other law enforcement files could not be maintained if the government were required to "prove to a court separately for each para

-

graph of each document that disclosure 'would' cause a type of harm specified" in the amendment to exemption 7. H. Doc. 93-383, 93d Cong., 2d Sess. 1 (1974). In order to meet this concern and to eliminate the administrative burden which he asserted the amendment would impose, the President recommended that agencies be permitted to treat an investigatory file as a unit without having to disclose non-exempt portions.

During the ensuing debates, Senator Hart urged Congress to reject this proposal and override the President's veto, explaining that such an exemption for investigative files would permit the government to commingle exempt with non-exempt information and thus keep information secret which the public has a right to obtain:

an agency to withhold all the records in a file if
any portion of it runs afoul of the [enumerated
safeguards]. It is precisely this opportunity
to exempt whole files which gives an agency
incentive to commingle various information into
one enormous investigatory file and then claim
it is too difficult to sift through and effec-
tively classify all of that information ..

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This "contamination" technique has been widely
used by agencies to thwart access to publicly
valuable information in their files. 120 Cong.
Rec. S 19812 (daily ed. November 21, 1974).

Congress proceeded overwhelmingly to endorse the 1974 amendments over President Ford's veto, therefore requiring that agencies demonstrate with respect to each investigatory record, including those contained in open files, that disclosure would in fact interfere with particular enforcement proceedings.

While this Court has not yet had occasion to review and interpret the scope of these amendments to exemption 7(A), decisions of the district courts and other circuits uniformly reveal that withholding may not be sustained merely on the grounds that requested records are part of a file that is somehow related to an open, ongoing, or future investigation. The government is required to demonstrate instead that a concrete prospective proceeding would be harmed in one of the ways articulated by Senator Hart.

In a number of cases, most of which involve unfair labor practice proceedings before the NLRB, the courts have evaluated FOIA requests from private litigants seeking discovery of evidence in the agency's files. In each of these cases, the courts took note of the fact that "the sponsors of the 1974 amendments acknowledged the right of an investigative agency to avoid the possible harm to a prospective law enforcement

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proceeding that might occur through 'premature release of evidence or information not in the possession of known or potential defendants.'"

See, e.g., New England Medical Center

v. NLRB, 548 F.2d 377, 382 (1st Cir. 1976) (emphasis added) (citing remarks of Senator Hart); Harvey's Wagon Wheel, Inc. v. NLRB, 550 F.2d 1139, 1141-2 (9th Cir. 1976); Title Guarantee Co. v. NLRB, 534 F.2d 484,490, 491 (2d Cir.) cert. denied, 429 U.S. 834 (1976). However, when a request for records arose outside the context of the particular unfair labor practice enforcement proceedings in which they had been or were being used, the courts have rejected the Board's claims that continued withholding was justified on the grounds that the records were contained in an open file.

In Deering Milliken, Inc. v. Irving, 548 F.2d 1131 (4th Cir. 1977), for example, the Fourth Circuit recognized that in order to sustain the claim that exemption 7(A) applied to the records there at issue, the NLRB was required to "show that

specific harm might result to its case from disclosure." 13/

548

F.2d at 1135. The Court concluded, however, that no such potential harm existed with respect to the only phase of the

13 See also, ITT Continental Baking Co. v. FTC, Trade Cases ¶ 60, 968 (D.D.C., July 9, 1976); Kramer v. Antitrust Division, (D.D.C., April 27, 1976), rehearing denied, (July 15, 1976) (Civil No. 75-666), aff'd. No. 76-1895 (D.C. Cir., June 7, 1977).