-28 the unfair labor practice proceedings which remained, involv ing back pay determinations. Judge Butzner stated: The reason for denying disclosure on the ground Moreover, in Donn Products, Inc. v. NLRB, 93 L.R.R.M. 2065 (N.D. Ohio 1976), and Committee on Masonic Homes v. NLRB, 414 F. Supp. 426 (E.D. Pa. 1976), rev'd. on other grounds, F.2d . 95 L.R.R.M. 2457 (3d Cir. 1977), courts ordered that records be disclosed over the NLRB's objections that future If defendant's theory that by reason of the 93 L.R.R.M. at 2066. See also, Committee on Masonic Homes, supra, 95 L.R.R.M. at 2460, n. 6. As In this case, however, the district court accepted the government's conclusory assertion that the information plaintiffs seek is such an inextricable part of an ongoing investigation -29 into political corruption in Maryland, that disclosure of such records would somehow harm the government's future and as yet unspecified enforcement efforts. We submit that the legislative history and judicial interpretation of amended exemption 7(A) make it clear that such an assertion is not a sufficient grounds for withholding. Plaintiffs recognize of course that there may well be documents which were used in the Agnew prosecution that are also directly related to the Mandel trial or to other particular enforcement efforts which the government, if put to its proper burden of proof, could show would be concretely harmed by disclosure. However, defendants have also admitted that many of the records sought were compiled solely for use in the Agnew case and are not presently being used in any other investigation (App. 29, 82-83). As to these records, the government's undocumented claim that they might become relevant to a "future phase" of some other investigation (App. 83, 99), is not the particularized showing of harm which exemption 7(A) requires. We also note that in reaching her decision, Judge Green failed to take account of whether applicable statutes of limitation might bar further criminal proceedings as to matters contained in the records plaintiffs seek. Nor did she require the government to specify whether any of the requested information -30 was made known to potential defendants or targets of the Maryland investigation during the course of the intervening Mandel trial. As courts recognized even before Senator Hart's clarification of amended 7(A), that exemption cannot serve to protect information which is already in the possession of the parties being investigated. Consumers Union v. Saxbe, Civ. No. 921-73 (D.D.C., May 9, 1974) (Slip. op. at 12-13) (Green, J.); Wellford v. Hardin, 444 F.2d 21, 24 (4th Cir. 1971). In short, the district court has essentially failed to address in any meaningful way the question of whether disclosure of the documents at issue would "interfere with enforcement proceedings" within the meaning of exemption 7(A). We submit that acceptance of the court's view that all "open" files are exempt would virtually undo Congress' work in narrowing this provision in the 1974 amendments to the FOIA.14/ If the decision 14/ See, for example, Commission on Federal Paperwork (Confidentiality and Privacy Study), A Report on Government Secrecy and Its Relation to Paperwork and Information Policy at 76-77 (March 1, 1977) (footnote omitted): Still another technique used by law enforcement agencies to avoid the requirements of the Freedom of Information Act is to keep information in open investigatory files after the investigation is terminated. The Freedom of Information Act permits agencies to withhold information in investigatory files where disclosure would compromise an enforcement proceeding. One official asserted that the FBI may keep a criminal investigation 'open' so as to avoid disclosing data from closed files. The FBI recently reported that its investigation of Daniel Schorr's -31 of the court below is permitted to stand, the public will indeed be required to patiently await the government's conclusion that all of its investigatory files are "closed" before information relating to the resignation of the former VicePresident "pass[es] into the public domain to be secured for history with another Freedom of Information Act suit" (App. 183). 14/ (cont. from preceding page) acquisition of the intelligence community report to II. -32 THE DISTRICT COURT ERRED IN FAILING TO FOLLOW THE Even if this Court finds that the district court's inter pretation of exemption 7 comports with legislative intent, this case must nevertheless be remanded for the further reasons that both the defendants and the court below failed to comply with the proper requirements for litigating and deciding FOIA cases, and consequently excluded plaintiffs from any meaningful participation in these proceedings. A. Neither The Government Nor The District Court Has The record reveals that throughout the proceedings below, plaintiffs made continuing efforts to require that defendants provide a description of the requested records, correlated with a detailed justification for the government's allegations that the documents are exempt from disclosure. See Vaughn v. Rosen, supra. Defendants instead repeatedly submitted affidavits which neither specified the number of documents at issue nor described the nature or content of the records which defendants had withheld, thus prompting the district court to conclude that the showing made by the government was "too conclusory to be of use" (App. 170). 21-656 0 - 78 - 48 |