and thoroughness of the Commission's search. The remaining question, therefore, is whether Mr. Tobin's statements exhibit the degree of "personal knowledge" necessary under Rule 56(e). In essence, we must decide what kind of evidence is needed (and admissible) to decide whether a search of the scale sought by Exxon has been adequately carried out.
Exxon's frustration in the face of its lack of knowledge is understandable, and is the result of the inherent weakness of the adversary process in Information Act cases first noted in Vaughn. The logic of Exxon's argument, however, carries too far. Exxon would require affidavits or testimony to be based on personal knowledge, and would demand that those affidavits cover each aspect and detail of the search. In the typical search for a few documents whose location is clearly defined such requirements cause no problem. But Exxon, by requesting all petroleum-related Congressional and inter-agency communications, has instigated a broad, national search with no inherent limit. To satisfy Exxon's requirement for personal knowledge of each detail of the search -- and it is clear from its papers that Exxon demands nothing less -- would require sworn testimony from at least one individual working in every office of the Commission, throughout the country. And it must be emphasized that this problem is not unique to the summary judgment stage -- it would also hold true at a full-blown trial.
The Court faces an all-or-nothing choice. Either it must allow an affidavit from the supervisor of the search to be conclusive as to its adequacy, or it must let Exxon pursue its discovery down to the level of each individual participating in the search.
There is no place in between for judicial line-drawing.
Faced with a choice between a decision based on incomplete knowledge and discovery that is unreasonably broad and burdensome, we must return to the language of the Act. The Act specifies that requests must be made only for "identifiable records."
The Commission has never objected that the documents sought by Exxon were not "identifiable." This attitude on the part of the Commission is commendable, but it should not waive their right to raise such an objection at a later time. Specificity in the request is needed not only to allow the agency to find the document, but also to enable the agency to demonstrate and the court to assess the adequacy of the search. It would be unreasonable to allow Exxon the extended discovery it wants when it has caused the Commission to search every nook and cranny; its discovery is aimed not at ascertaining whether identified records have been produced, but whether there exist additional records that might be specifically identified by Exxon. It would be unreasonable to read the intent of Congress expressed in the Freedom of Information to require such discovery. Hence, on the basis of the complete record of this case, this court believes that the information provided by the Commission demonstrates the adequacy of its search for all "identifiable records," and that any further discovery by Exxon would be unreasonable. Consequently we hold that any documents not found in the search described by Mr. Tobin or listed in the Commission's indices are not "identifiable records" under the Act.
Thus we reject Exxon's argument that the inadequacy of Mr. Tobin's answers keep this case from being ripe for summary judgment.
Exxon's second contention is that this action is not ripe for summary judgment because the index of documents provided by the Commission does not analyze each document in detail specifying the subject matter area and precise form of the document and itemizing paragraph by paragraph which sections of each document fit under which exemption. In essence, Exxon seeks to stretch Vaughn far outside its original boundaries.
Vaughn did not lay down a per se rule to be applied to every Freedom of Information Act case. It rather suggested a technique to assist the court when needed. When there is "a factual dispute regarding whether the documents actually fit" the description by the government, and when the government claims multiple exemptions which may apply "to all or only a part of the information," in documents consisting of "hundreds or even thousands of pages," then the government must provide more than mere conclusory allegations with its in camera submission. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 824-25. In other words, the index is designed primarily to enable the court to review effectively the agency's decision not to disclose. The extent to which it facilitates adversarial analysis by the party seeking disclosure is a mere by-product. Hence it is within the court's discretion to determine whether a particular in camera submission requires an index, and, if so, the degree of specificity required.
In this action, the court, after careful in camera inspection, finds the index submitted to be adequate for its needs. With respect to the single document identified by Exxon -- the Report -- the Commission claims that it fits in its entirety under the exemption for investigatory files, 5 U.S.C. § 552(b) (7). Since this exemption can include factual as well as non-factual material, the court agrees. Hence there is no further need for specificity in the index. The remaining items, identified only generally by Exxon but listed by the Commission, are grouped by description under each appropriate exemption. Most of these items are a few pages long, and many consist merely of a few lines of deleted identification material. The court finds the index to be sufficient to enable it to consider whether the documents are properly exempt from disclosure. Hence the court considers this case ripe for summary judgment.
Having decided that this action is ripe for summary judgment, we proceed to examine whether the Commission can properly withhold the documents sought by Exxon.
A. Staff Report
The Commission claims that the Report is exempt from discovery by virtue of exemptions b(5) and b(7). We need only consider the exemption for "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency". 5 U.S.C. § 552(b) (7). It is undisputed that the Commission lawfully engages in investigations for law enforcement purposes. The record reflects that currently pending before the Commission is an antitrust complaint against eight leading petroleum firms, including Exxon, charging defendants with violating Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. In the Matter of Exxon Corporation, et al., FTC Docket No. 8934. Recent Court of Appeals opinions indicate that a file compiled for law enforcement purposes is exempt in its entirety and is not subject to the fact-opinion dichotomy applicable to other exemptions. This is so because the exemption is designed to protect the government from having to expose its case prematurely or compromise its investigative techniques and informants. And the exemption applies even when no action is brought,
and after a case has been terminated.
Nor need there be a showing of threatened harm from disclosure.
The trial court's duty is to examine the total record to determine "whether the files sought . . . relate to anything that can fairly be characterized as an enforcement proceeding."
While mere conclusory affidavits are insufficient, once the court finds that the material was compiled for law enforcement purposes, its inquiry ends.
In the instant situation, there is an ongoing investigation with an existing complaint. The Report, examined in camera, was clearly compiled as part of the Commission's investigatory file. Exxon does not dispute this. Instead, Exxon argued that the Commission has waived the exemption by releasing the Report to Congress (and thereby to the public), and that those parts of the report containing factual data do not fall under exemption b(7).
Exxon's waiver argument fails. The Freedom of Information Act itself states that "[this] section is not authority to withhold information from Congress," 5 U.S.C. § 552(c), and the Federal Trade Commission Act imposes informational duties on the Commission. 15 U.S.C. § 46(f). Clearly Congress intended that it should receive information not available to the public.
In any event, Exxon has cited no authority for their proposition that release of selected portions or release to selected persons waives the right to claim an exemption from release of other portions or to other persons.
Exxon's claim that factual information contained in the Report must be disclosed (and consequently must be identified by the Commission in a Vaughn index) must also be rejected. The fact-opinion dichotomy drawn by the Court of Appeals in Vaughn and other cases relates to the application of exemption b(5). When exemption b(7) applies, it exempts the entire file. Plaintiffs cite no case, and we have found none, where the fact-opinion dichotomy has been applied to material exempted by the b(7) exemption for investigatory files. Indeed, knowledge that particular factual material is contained in an investigatory file may reveal important tactical choices made by the investigating agency and thereby harm an investigation far more than would knowledge of the actual facts taken outside the context of the investigation.
Consequently we hold that the Report sought by Exxon fits within exemption 5 U.S.C. § 552(b) (7) and is not required to be disclosed by the Commission. Thus we need not consider the Commission's claim that the Report falls under exemption b(5).
B. Congressional Communications
The second type of information withheld by the Commission is found in its Congressional correspondence. This correspondence in the main involves letters complaining of various practices by oil companies (including Exxon) that were sent to members of Congress and then forwarded to the Commission. Many of the actual documents are form letters forwarding these complaints and form responses acknowledging them. Most of the letters of complaint are from franchisees and independent station operators, persons who would become subject to retaliation if their identities were known. The Commission has disclosed the Congressional-Commission correspondence only after first deleting names and identifying details. It claims that its deletions are sanctioned by an "informant's privilege," allowed under exemptions b(3) (exempted by statute), b(4) (confidential commercial information), and b(7) (investigatory files.) Again, we need only consider b(7).
The identifying details in question clearly fit under exemption b(7). An important purpose behind the exemption is to allow law enforcement agencies to fulfill their responsibilities without divulging their modus operandi or the identities of their informants. This purpose would be jeopardized if Exxon were given the names of those who had complained of its behavior. The invasion of privacy and fear of possible reprisal would keep such information from the government in the future. As the Second Circuit has said,
"If an agency's investigatory files were obtainable without limitation after the investigation was concluded, future law enforcement efforts by the agency could be seriously hindered. The agency's investigatory techniques and procedures would be revealed. The names of people who volunteered the information [during the course of] the investigation initially or who [had] contributed information during the course of the investigation would be disclosed. The possibility of such disclosure would tend severely to limit the agencies' possibilities for investigation and enforcement of the law since these agencies rely, to a large extent, on voluntary cooperation and on information from informants."
Whether or not an actual investigation was undertaken for any complaint in particular, these complaints were written and forwarded to instigate investigations of violations of the law, and many of them relate to the pending action cited above. Consequently we hold that the identifying details in the forwarded letters were properly deleted under exemption 5 U.S.C. § 552(b) (7).
While we need not decide whether the material also falls under exemptions b(3) and b(4), the court notes that deletion of identifying detail is consistent with guidelines for exemption b(4) expressed in Bristol-Myers Company v. F.T.C., 138 U.S. App. D.C. 22, 424 F.2d 935 at 939 (1970) and Grumman Aircraft Engineer. Corp. v. Renegotiation Bd., 138 U.S. App. D.C. 147, 425 F.2d 578 at 581 (1970), with the statutory mandate to the Federal Trade Commission,
and with the Freedom of Information Act itself.
C. Inter-Agency Communications
The Commission claims that its withheld inter-agency communications fit under exemptions b(3) (exempt by statute), b(4) (confidential commercial information), b(5) (inter-agency memoranda), and b(7) (investigatory files). The documents can be grouped into three sets.
The first set, described in sections 3C and 3D of the index,
are communications between the Department of Justice and the Commission referring complaints between the agencies for possible use in law enforcement investigations. For reasons given above, these documents are exempt from disclosure under 5 U.S.C. § 552(b) (7).
The second set of documents, listed in 3B and 3E of the index, includes communications relating to either the investigation discussed above (In the Matter of Exxon Corporation, et al.) or to other investigations of the Commission. After in camera inspection, the court finds no reason to doubt the Commission's representation that these documents come from investigatory files compiled for law enforcement purposes. Accordingly, these documents are exempt from disclosure under 5 U.S.C. § 552(b) (7).
The remaining three documents, listed in 3A of the index, do not relate to an investigation undertaken for law enforcement purposes. They are claimed to be "inter-agency . . . memorandums . . . not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b) (5). Under the interpretation of EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973), exemption b(5) applies to inter-governmental opinions, but does not allow non-disclosure of "purely factual material appearing in those documents in a form that is severable without compromising the private remainder of the documents." 410 U.S. 73 at 91, 93 S. Ct. 827, 35 L. Ed. 2d 119. After inspecting the three documents in camera, the court finds that none of the three contain factual material that can be severed from the remaining portions of the document without jeopardizing disclosure of the opinions expressed in those documents. Consequently these three documents are exempt from disclosure under 5 U.S.C. § 552(b) (5).
Accordingly we do not reach the application of exemptions b(3) or b(4) to any of the inter-agency communications.
For reasons expressed in this memorandum, it is, this 13th day of August, 1974,
Ordered that plaintiff's motion for a pretrial order and motion for partial summary judgment, be, and hereby are, denied as moot, and it is further
Ordered that defendants' motion for summary judgment be, and hereby is, granted, and it is further
Ordered that plaintiff's motion to reinstate the deposition of Charles A. Tobin and motion to impose sanctions for failure to answer interrogatories be, and hereby are, denied.