Bureau response to such diverse issues as a request for comment on pending legislation, requests for information, press criticism, and even such minor matters as a congressional luncheon invitation. It is apparently the regular practice of the Bureau staff to make formal, written recommendations on all contacts with Congressmen, however trivial.
Most of these memoranda contain factual summaries as well as policy recommendations, and some are purely analytical, concluding with the notation that the document is submitted "for information" rather than for consideration of a recommended course of action. In either case, the Bureau staff almost uniformly includes within its memoranda a "background" description of the Congressmen involved, setting forth some information in the Bureau's possession concerning past affiliations of the Congressmen and their families and the Congressmen's contacts with and attitudes toward the F.B.I. With regard to the three plaintiff Congressmen, the background emphasis is upon their involvement in liberal or controversial causes. A few of the documents in question consist solely of such biographical material, compiled to assist the Director and his staff in evaluating Congressmen who have made specific requests of the Bureau or who sit on committees considering legislation in which the Bureau has an interest. The Court cannot determine whether this information is accurate, but it appears to be highly selective in nature, compiled not as objective or comprehensive biographical data but rather intended briefly to acquaint the Director and his staff with those aspects of a Congressman's life and career that are perceived to be of the most immediate concern -- and which, of course, would support any recommendations included in the memoranda or contemplated for the future.
After examining each of these documents individually, the Court concludes that three of them are wholly free of deliberative, policy considerations. They briefly recount recent contact with Congressman Koch for purely informational purposes. Consequently, they do not fall within the fifth exemption and must be disclosed.
All of the other documents at issue may be withheld as "internal working papers in which opinions are expressed and policies formulated and recommended." Ackerly v. Ley, 137 U.S. App. D.C. 133, 138, 420 F.2d 1336, 1341 (1969). Such factual information as is contained in these documents is inextricably intertwined with the policy-making process, in that the very choice of facts reveals the concerns of the agency and the deliberations of staff personnel. Montrose Chemical Corp. of Calif. v. Train, 160 U.S. App. D.C. 270, 491 F.2d 63 (D.C. Cir. 1974); Soucie v. David, 145 U.S. App. D.C. 144, 154-155, 448 F.2d 1067, 1077-1078 (1971). This is true even of those few memoranda which contain no specific recommendations, since these internal papers also reflect the concerns and mental processes of the staff in developing the Bureau's continuing policy in its relations with Congress on matters of immediate concern to the Bureau. Virtually all of the factual material in these documents is already known to the plaintiffs in any case, so that the only purpose to be served by disclosure would be to reveal which facts were deemed significant by the Bureau -- and that is precisely the kind of information that Congress intended to protect under the fifth exemption to the Freedom of Information Act. Montrose Chemical Corp. of Calif. v. Train, supra, at 70-71. It is, moreover, quite apparent that Congress never contemplated the release of such documents to the public at large.
On the basis of these findings of fact and conclusions of law, it is hereby
Ordered that defendants promptly produce and make available to plaintiffs for inspection and copying the following three documents submitted to the Court: the memorandum from Mr. Brownfield to Mr. Jenkins dated 3/5/73, the memorandum from Mr. Bowers to the Director dated 9/11/73, and the memorandum from Mr. Bowers to Mr. Franck dated 10/30/73; and it is further
Ordered that all other documents submitted in camera be sealed and that defendants may withhold such documents from disclosure as exempt under 5 U.S.C. § 552(b) (5); and it is further
Ordered that defendants' motion for summary judgment is granted to the extent set forth above, and otherwise denied.
SUPPLEMENTAL MEMORANDUM ON MOTION TO AMEND AND CLARIFY
The Court has considered plaintiffs' unopposed motion to amend and clarify its Memorandum and Order of May 3, 1974, and in response thereto submits the following Supplemental Memorandum.
The Court has held that all communications to the Federal Bureau of Investigation by private citizens concerning the character or conduct of third persons are shielded from public disclosure by 5 U.S.C. § 552(b) (7), in that, collectively, they form a vital source of information which may lead to the detection and prosecution of criminal offenses. The Court did not find that any of the particular communications at issue in this case actually contain allegations of criminal conduct on the part of any of the plaintiffs, nor has it even read those documents in camera to make such a determination. The Court's decision was based upon the apparent investigatory nature of the files, rather than of the individual documents within them, in accordance with Weisberg v. Dept. of Justice, 160 U.S. App. D.C. 71, 489 F.2d 1195 (D.C. Cir. 1973).
Plaintiffs' motion for amendment and clarification is granted to the extent set forth above.
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