-38 ment proceedings, "relating to political corruption in Maryland" (App. 183). Even if this Court accepts Judge Green's interpretation of the scope of exemption 7(A), we submit that the mere conclusion that records are part of an open file is not in and of itself a sufficient basis for affording full appellate review. Plaintiffs must at least have additional facts concerning the nature and content of the documents at issue in order to convince this Court that, for example, there may well be records relating only to investigations of crimes for which the applicable statute of limitations had already run. Particularly in light of the fact that the district court did not issue her final opinion until more than a year after defendants' affidavits were submitted, we also need information from which we can determine if the docu ments relate to individuals against whom criminal proceedings were in fact no longer contemplated. Moreover, plaintiffs must be provided a more detailed justification for withholding in order to adequately present the counter argument that matters which might have warranted protection in the past may be made public now or in the very near future in light of both the proceedings in the two 17/ Mandel trials and other intervening developments. 17/ man - For example, the Washington Post recently reported that, pursuant to a request by the United States Attorney, the federal court in Maryland dismissed all remaining charges against I. H. Hammerone of the two witnesses whose statements the court ordered withheld "in toto" (App. 173, 192) on the grounds that eight years had elapsed since Hammerman had allegedly committed the crimes. See Schauble, "Kickback Figure Has Charges Dismissed," Washington Post, June 18, 1977, at D1, col. 5. That article also notes the fact that the prosecutors have never taken legal action against Lester Matz, the other witness whose statement was withheld. -39 These are just a few of the potential issues which plaintiffs could not address below, and which likewise cannot be argued here, because of the fact that neither the defendants nor the district court provided the specific elaboration mandated by law. Until such time as additional information is made part of the record in this case, plaintiffs cannot subject the government's contentions to the "adequate adversary testing" which the Vaughn decision sought to encourage in Freedom of Information Act cases. 484 F.2d at 828. B. The District Court Committed Irreparable Error By Having refused to provide plaintiffs the information to which they are entitled under Vaughn and having ignored plaintiffs' statement that genuine issues of material fact therefore remained, the district court committed its most egregious error of all by resolving those disputed questions as to at least the four witness statements on the basis of defendants' unrecorded, ex parte representations. Plaintiffs submit that all of the actions of the district court - in traveling to the offices of the U.S. Attorney in Maryland (one of the defendants in this case), in receiving additional and apparently dispositive evidence in the -40 absence of a court reporter, in then issuing her decision in - an opinion which she placed under seal, and finally, in not It is, of course, permissible in FOLA cases for courts to conduct in camera inspections of requested records, 5 U.S.C. § 552(a) (4) (B). But the district court's entertainment of ex parte argument and testimony went far beyond what the law allows and completely stripped these proceedings of the adverseness which is basic to our adjudicatory system. See Alderman v. United States, 394 U.S. 165, 183-185 (1969); U.S. v. Reynolds, 345 U.S. 1, 7-8 (1953). By engaging in such conduct, the district court has deprived plaintiffs of the right to crossexamine defendant Finney's testimony and the opportunity to counter defendants' attorneys' arguments. The resulting disadvantage to plaintiffs and the denial to them of due process are obvious. See Mister Ralpho v. Bell, No. 75-2088 (D.C. Cir., March 29, 1977) (slip op. at 39-40) ("an opportunity to meet and rebut evidence has long been regarded as a primary requisite of due process.") Moreover, the district court's error was compounded by the fact that she intentionally chose not even to inform plaintiffs -41 that she was contemplating undertaking ex parte discussions - with defendants and their counsel. In so doing, she deprived the aid of counsel in the case for in camera consideration of the validity of particular decisions, 18 counsel.") (emphasis added); Nixon v. Sirica, 159 U.S. App. D.C. 58, 487 F.2d 700, 721 (1973). "Adversary proceedings," 18 In fact, the legislative history of the 1974 amendments to the FOIA demonstrates that Congress at one point considered adopting a provision which would have authorized ex parte argument (not testimony as here) in some national security cases of a "particularly sensitive nature." 120 Cong. Rec. S 9315 (daily ed. May 30, 1974). Even in these cases, however, such a procedure would only have been permitted after a showing on the record that "the involvement of plaintiffs' counsel would itself pose a threat to the national security." Id. Yet, after a lengthy floor debate, the Senate rejected the idea of including in the final bill any such provision for ex parte argument. Id. at 9318-28. -42 plaintiffs recognize, "will not magically eliminate all error, While we note that this Court has indicated that in camera, ex parte affidavits may under some circumstances be considered in FOIA cases, the Court carefully defined the "peculiar context" in which such an extreme procedure would be justified: i.e., when an agency's position is that it can neither confirm nor deny the existence of the requested records, so that, beyond the public showing required, there are no relevant documents for the court to examine in further evaluating the government's position. See Phillippi v. CIA, U.S. App. D.C. 546 F.2d 1009, 1013 (1976); Military Audit Project v. Bush, No. 75-2103 (D.C. Cir., Jan. 14, 1977). Of course, no such circumstances existed here since the district court failed to require the government to first attempt to justify its claims for withholding on the public record. But most importantly, unlike the affidavits submitted in the cases referred to above, the ex parte representations made by defendants here were never preserved for the record and therefore remain unavailable not only to plaintiffs but to this Court. As a result, not only was the decision below rendered without "benefit of an adversarial discussion among the parties," but the communications which were determinative of that decision are not susceptible to judicial review. Home Box |