In this suit under the Freedom of Information Act ("FOLA"), plaintiffs seek to make public the official records 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 evasion in 1973. After finding that the numerous affidavits submitted by the government in support of its claims for withholding were "too conclusory to be of use," the district court reviewed the requested documents at the offices of the United States Attorney in Baltimore, Maryland, where, in the absence of either plaintiffs' counsel or a court reporter, defendants provided additional information to the court. On the basis of these ex parte proceedings, the court below concluded that all but two of the documents the bulk of which have never been described in terms of either number or form, let alone content - - were part of allegedly ongoing investigations -2 into political corruption in Maryland and therefore exempt from disclosure under 5 U.S.C. § 552 (b) (7) (A). In so doing, the court not only failed to conform to the procedures established by Congress and this Court for handling FOIA cases, but in affording blanket protection to all records contained in a so-called "open file", the court also adopted an interpretation of exemption 7 (A) which was expressly overruled by Congress when it amended that provision in 1974. Plaintiffs therefore seek an order reversing the decision below and remanding the case to the Chief Judge of the district court for reassignment to a new judge who, without knowledge of defendants' prior ex parte representations, can make a proper determination as to whether any of the requested records may be withheld. QUESTIONS PRESENTED Whether the district court erred in holding that Exemption 7(A) of the Freedom of Information Act, which permits the withholding of investigatory records only to the extent that production would "interfere with enforcement proceedings," affords blanket protection to all records which are part of an allegedly "open file." Whether the district court erred in failing to require defendants to follow the procedures mandated by this Court for -3 FOLA cases and in granting summary judgment for the government on the basis of its ex parte, off the record representations.*/ STATUTE INVOLVED The Freedom of Information Act, 5 U.S.C. § 552, as amended by Pub. L. No. 93-502, 88 Stat. 1561, provides in pertinent part: (b) This section does not apply to matters that are: (7) investigatory records compiled for law enforcement REFERENCES TO PARTIES AND RULINGS The plaintiffs in this case are Roy Baldwin and Bruce Feder. The Department of Justice is a defendant, as are Jervis Finney, United States Attorney for the District of Maryland, and Griffin Bell, Attorney General of the United States. */ This case has not previously been before this Court and counsel are unaware of any related case presently pending in this or in any other Court, or that may be presented to this Court or to any other court in the future. -4 Nos. 76-1182 and 76-1186 are cross-appeals from an unre under seal, but made part of the public record by Order of this - Court dated June 27, 1977 are reproduced in the Joint Appendix at pages 173-174 and 190-192 respectively. By Order of this Court dated April 9, 1976, these cases were consolidated for consideration on the merits and stayed pending the district court's final decision on the remaining documents at issue. No. 77-1237 is an appeal from the final Judgment and Opinion entered by the district court on December 26, 1976 and from the court's Order of February 8, 1977, denying plaintiffs' Motion for Reconsideration and Clarification of that Judgment. These additional decisions, which have not yet been officially reported, are reproduced in the Appendix at pages 182-185. By order of this Court dated March 11, 1977, No. 77-1237 was further consolidated with Nos. 76-1182 and 76-1186 for consideration on appeal. STATEMENT OF THE CASE The plaintiffs, "who are acting as concerned citizens interested in the investigation of the former Vice President of the United States" (App. 126), first submitted their Freedom of -5 Information Act request on April 24, 1975. In that request, they sought all records in the possession of the Department of Justice and the United States Attorney for the District of Maryland (the defendant Jervis S. Finney) 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 (App. 8). Both in their initial response and in reply to the administrative appeal, however, defendants maintained that the specified documents were investigatory records which were exempt from disclosure in their entirety (App. 11-17). Plaintiffs filed this action pro se on July 29, 1975 (App. 5). Plaintiffs subsequently moved under Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977 (1974), for an order requiring defendants to provide a detailed justification for withholding the requested records, an itemization describing the various types of records falling within the request, and an index correlating defendants' claims of exemptions with the specific records withheld (App. 18). Defendants opposed this motion as being premature, and countered with their own motion for summary judgment, arguing that the accompanying Affidavit of Jervis S. Finney provided the requisite detailed justification for their claims that the documents were |