The opinion of the court was delivered by: PARKER
Specifically requested by the plaintiff were any documents which (a) authorized the establishment and maintenance of the Cointelpro program; (b) terminated such program; and (c) ordered or authorized any change in the purpose, nature or scope of the program.
The Justice Department admitted to the existence of such a program
but refused to release the material. The Court, following the recommended procedure, conducted an inspection of the requested documents in camera.3 See e.g. Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973); Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (1971); Bristol-Myers v. F.T.C., 138 U.S. App. D.C. 22, 424 F.2d 935 (1970).
The government moved the Court for an order, pursuant to Rule 12(b) (1) and (6) of the Federal Rules of Civil Procedure, dismissing the complaint, or, in the alternative, to grant summary judgment in its favor pursuant to Rule 56. The plaintiff cross moved for summary judgment.
Having reviewed the in camera submissions, and upon consideration of the pleadings and memoranda filed, the Court finds that the documents to which access is sought fall outside the protection of the above exemptions and, therefore, are not immune from disclosure. Accordingly, the Court denies the defendant's motions and grants and enters summary judgment in favor of the plaintiff.
The Court notes preliminarily that the Act is clear in its requirement that the reviewing court make a de novo determination, and that the withholding agency is encumbered with the burden of justifying its refusal to disclose the requested material. 5 U.S.C. § 552(a) (3). Furthermore, the case law makes it abundantly clear that the policy underlying in all respects favors disclosure. "Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling hands." Environmental Protection Agency v. Mink, supra at 80, of 410 U.S., at 832 of 93 S. Ct. See e.g. Getman v. N.L.R.B., 146 U.S. App. D.C. 209, 450 F.2d 670, 672 (1971); Bristol-Myers v. F.T.C., supra. As Chief Judge Bazelon has counseled:
"The touchstone of any proceedings under the Act must be the clear legislative intent to assure public access to all governmental records whose disclosure would not significantly harm specific governmental interest. The policy of the Act requires that the disclosure requirement be construed broadly, the exemptions narrowly." Soucie v. David, supra at 1080, of 448 F.2d.
The strength of the government's defense
rests upon an affidavit executed by Special Agent James L. Williamson of the FBI, in which he concluded that the documents fall within the three previously mentioned exemptions and that disclosure of their contents would deleteriously affect the effective functioning of the Bureau. The Court need not and, after examining the material, does not accept those conclusions.
Matters . . . related solely to the internal personnel rules and practices of an agency
The government contends that the requested material includes instructions related to Bureau investigative operation and as such represents internal procedures, the disclosure of which would thereafter seriously threaten "the effectiveness of the operation of the FBI . . . to the detriment of the efficient operation of the organization."
A most thorough and helpful analysis of this exemption is contained in Hawkes v. Internal Revenue Service, 467 F.2d 787 (6th Cir. 1972), in which the (b) (2) exception to the Act was narrowly defined and limited. The Court noted the wide discrepancy between the House and Senate interpretations of the exceptions, as evidenced in their respective Reports.
The Hawkes Court adopted the Senate version, confining the exception to "employee-employer type concerns upon which the Senate Report focused."
This rationale was subsequently adopted in Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973) and, as the citations included in that opinion indicate, has carried the weight of authority. At 703.
The Court's in camera review and inspection leave little, if any, doubt that the communications here involved have nothing whatsoever to do with the internal personnel rules and practices of an agency as that exception has been interpreted. Exemption (b) (2), therefore is of no ...