Normally, clause (A) will apply only to investigatory records relating to law enforcement efforts which are still active or in prospect-sometimes administratively characterized as records in an "open" investigatory file. But this will not always be the case. There may be situations (e.g., a large conspiracy) where, because of the close relationship between the subject of a closed file and the subject of an open file, release of material from the former would interfere with the active proceeding. Also, material within a closed file of one agency may bear directly upon active proceedings of another agency, Federal or State.

The meaning of "interfere" depends upon the particular facts. (120 Cong. Rec. S 9330 (May 30, 1974) (Senator Hart).) One example of interference when litigation is pending or in prospect is harm to the Government's case through the premature release of information not possessed by known or potential adverse parties. Ibid. Regarding investigations, interference would be created by a release which might alert the subject to the existence of the investigation, or which would "in any other way" threaten the ability to conduct the investigation, (120 Cong. Rec. S 9337 (May 30, 1974) (letter of Senator Hart).) The legislative history indicates that, while the 7th exemption as it previously stood was to be narrowed by changing "files" to "records" and specifying six bases for asserting the exemption, these new bases themselves were to be construed in a flexible manner. (See, e.g., 120 Cong. Rec. S 9330 (May 30, 1974) (Senator Hart); 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).) This applies to clause (A) and may properly be considered in determining the meaning of "interfere."

(B) DEPRIVATION OF RIGHT TO FAIR TRIAL OR ADJUDICATION

Clause (B) permits withholding to the extent that production would "deprive a person of a right to a fair trial or an impartial adjudication.” This provision also came, without change, from Senator Hart's amendment; no specific explanation of it is contained in the legislative history.

A fundamental difference between clause (A) and clause (B) is that, while the former is intended primarily to protect governmental functions, clause (B) protects the rights of private persons. "Persons" is defined in the Administrative Procedure Act (APA), of which the Freedom of Information Act is a part, to include corporations and other organizations as well as individuals. (5 U.S.C. 551(2).) The term "trial" is undefined, but would normally be thought to apply to judicial proceedings, both civil and criminal, in Federal and State courts. “Adjudication”" is defined in the APA to mean the procedure by which Federal agencies formulate decisions in all matters except rulemaking (including ratemaking). (5 U.S.C. 551(7); see also 5 U.S.C. 551(4), (6), (9), and (12).) It is unlikely, however, that this definition was intended to apply here, since there is no apparent reason why Federal ratemaking or, for that matter, the most important state administrative proceedings should have been thought undeserving of any protection in contrast to informal and relatively inconsequential determinations that may qualify as Federal "adjudication" technically speaking (e.g., approval or denial of an application for a small grant for a cultural demonstration trip.) It will be seen elsewhere as well that the drafting of these Amendments apparently does not presume the APA definition of "adjudication". (See Part II-B, pp. 19-20 below.) It would seem best to interpret the word in this clause to refer to structured, relatively formal, quasi-judicial administrative determinations in both State and Federal agencies, in which the decision is rendered upon a consideration of statutorily or administratively defined standards.

Clause (B) would typically be applicable when requested material would cause prejudicial publicity in advance of a criminal trial, or a civil case tried to a jury. The provision is obviously aimed at more than just inflammation of jurors, however, since juries do not sit in administrative proceedings. In some circumstances, the release of damaging and unevaluated information may threaten to distort administrative judgment in pending cases, or release may confer an unfair advantage upon one party to an adversary proceeding.

(C) INVASION OF PRIVACY

Clause (C) exempts law enforcement investigatory records to the extent that their production would "constitute an unwarranted invasion of personal privacy." The comparable provision in Senator Hart's amendment referred to

"clearly unwarranted" invasions, but "clearly" was deleted by the Conference Committee.

Except for the omission of "clearly," the language of clause (C) is the same as that contained in the original Act for the sixth exemption, the exemption for personnel, medical and similar files. Thus, in determining the meaning of clause (C), it is appropriate to consider the body of court decisions regarding the latter-bearing in mind, of course, that the deletion of "clearly" renders the Government's burden somewhat lighter under the new provisions. (See, e.g., 120 Cong. Rec. II 10003 (Oct. 7, 1974) (letter of chairman of conferees).) In applying clause (C), it will also be necessary to take account of the Privacy Act of 1974, Public Law 93-579, which takes effect in September 1975.

The phrase "personal privacy" pertains to the privacy interests of individuals. Unlike clause (B), clause (C) does not seem applicable to corporations or other entities. The individuals whose interests are protected by clause (C) clearly include the subject of the investigation and "any [other] person mentioned in the requested file." (120 Cong. Rec. S 9330 (May 30, 1974) (Senator Hart).) In appropriate situations, clause (C) also protects relatives or descendants of such persons.

While neither the legislative history nor the terms of the Act and the 1974 Amendments comprehensively specify what information about an individual may be deemed to involve a privacy interest, cases under the sixth exemption have recognized, for example, that a person's home address can qualify. It is thus clear that the privacy interest does not extend only to types of information that people generally do not make public. Rather, in the present context it must be deemed generally to include information about an individual which he could reasonably assert an option to withhold from the public at large because of its intimacy or its possible adverse effects upon himself or his family.

When the facts indicate an invasion of privacy under clause (C), but there is substantial uncertainty whether such invasion is "unwarranted," a balancing process may be in order, in which the agency would consider whether the individual's right are outweighed by the public's interest in having the material available. (Cf. Getman v. NLRB, 450 F. 2d 670 (D.C. Cir., 1971), and Wine Hobby U.S.A., Inc. v. United States Bureau of Alcohol, Tobacco and Firearms, 502 F. 2d 133 (3d Cir., 1974) (sixth exemption cases).)

The Conference Report states (p. 13) that "disclosure of information about a person to that person does not constitute an invasion of his privacy." It must be noted, however, that records concerning one individual may contain information affecting the privacy interests of others. Of course, when information otherwise exempt under clause (C) is sought by a requester claiming to be the subject of the information, the agency may require appropriate verification of identity. (D) DISCLOSURE OF CONFIDENTIAL SOURCES OR INFORMATION PROVIDED BY SUCH SOURCES

Clause (D), which was substantially broadened by the Conference Committee, exempts material the production of which would: “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."

The first part of this provision, concerning the identity of confidential sources, applies to any type of law enforcement investigatory record, civil or criminal. (Conf. Rept. p. 13.) The term "confidential source" refers not only to paid informants but to anv person who provides information "under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred." Ibid. In most circumstances. it would be proper to withhold the name, address and other identifying information regarding a citizen who submits a complaint or report indicating a possible violation of law. Of course, a source can be confidential with respect to some items of information he provides, even if he furnishes other information on an open basis; the test, for purposes of the provision, is whether he was a confidential source with respect to the particular information requested, not whether all connection between him and the agency is entirely unknown.

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