under this statute is to be considered in conjunction with the Freedom of Information Act. Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S. App. D.C. 147, 425 F.2d 578, 580 n.5 (1970); M. A. Schapiro & Co. v. Securities and Exchange Commission, 339 F. Supp. 467 (D.D.C. 1972).
Taking account of the above considerations, it is the opinion of this Court that plaintiff is not entitled to the names and personal data of the Endowment's consultants and that defendant Emerson's objections to the recommendation of the Pre-Trial Examiner should be sustained for the reasons explained below.
First, resolution of this issue in defendant's favor is suggested by the cases arising under the Freedom of Information Act, the focal point about which both Rule 26(b) and 18 U.S.C. § 1905 must be viewed. The principles of public policy which underlie exemption (5) of the Act have been subjected to judicial scrutiny in a variety of factual contexts and by a number of the circuit courts of appeal.
In brief, this exemption is designed to protect the confidentiality of an agency's internal, decision-making processes. Memoranda containing advisory comments are protected from disclosure in order to "encourage the free exchange of ideas during the process of deliberation and policy-making." Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067, 1077 (1971). Even factual material may be protected from disclosure if contained within a document which is otherwise exempt under the Act and if the divulgence of the factual matters would hamper the agency's deliberative process. Montrose Chemical Corporation of California v. Train, 160 U.S. App. D.C. 270, 491 F.2d 63 (D.C. Cir. 1974). This analysis is extended to government consultants on the ground that "those individuals should be able to give their judgments freely without fear of publicity." Soucie v. David, 448 F.2d at 1078, n.44.
Although the identities and addresses of the Endowment's outside reviewers could be construed as purely factual items which would not be exempt under the Freedom of Information Act, the rationale of Montrose makes a compelling argument against disclosure.
The Endowment's need to engage special consultants is clear. Decisions must be made concerning technical or specialized disciplines within the humanities. Many of these decisions, involving large sums of money, may depend upon the evaluation of differing subjective points of view. The Fifth Circuit Court of Appeals has already observed that the community of Chinese scholars is very small.
To expose those persons to Mr. Wu's harassment would certainly jeopardize the Endowment's ability to stimulate the "free exchange of ideas" necessary to effectuate its statutory functions.
Applying the flexible approach suggested in Mink, the Court has considered the Endowment's activities, the role played by the consultants and the nature of the information sought in light of the public policy considerations supporting exemption (5) of the Freedom of Information Act and Rule 26(b) of the Federal Rules of Civil Procedure. Non-disclosure of the information in question would be most consistent with these considerations.
A second mode of analysis -- viewing plaintiff's request for information solely in the context of discovery under the Federal Rules -- leads to a like conclusion. This Court cannot overlook the fact that plaintiff's allegations are extremely vague and conclusory. Although he claims fraud as a basis for this action, plaintiff has not alleged facts which would establish the necessary elements to support such a claim, as to either the named or unnamed defendants. See United States v. Kiefer, 97 U.S. App. D.C. 101, 228 F.2d 448 (1956), cert. denied, 350 U.S. 933, 100 L. Ed. 815, 76 S. Ct. 305, rehearing denied, 350 U.S. 977, 100 L. Ed. 847, 76 S. Ct. 431.
Plaintiff's reference to defamatory conduct on the part of defendants is similarly averred in incomplete and conclusory terms.
Plaintiff may not rectify these inadequacies in his pleadings by asserting equally vague claims of conspiracy; a conspiracy alone does not give rise to a claim for relief unless accompanied by an overt act and carried out to achieve an unlawful end. Edwards v. James Stewart & Co., 82 U.S. App. D.C. 123, 160 F.2d 935 (1947).
It is within the discretion of the court to deny the use of discovery as a "fishing expedition based on an unsupported and nebulous allegation of criminal conspiracy." Chung Wing Ping v. Kennedy, 111 U.S. App. D.C. 106, 294 F.2d 735, 737 (1961), cert. denied, 368 U.S. 938, 7 L. Ed. 2d 337, 82 S. Ct. 380. The discovery sought by plaintiff in this case appears to be little more than a "fishing expedition." In fact, plaintiff's supporting memoranda belie the fact that he is pursuing common law claims for fraud or defamation.
To the contrary he gives every indication that he is using this suit as a collateral means of questioning the Endowment's original decision not to approve his request for a grant. In this light it is appropriate to deny plaintiff the discovery he seeks.
For each of the two reasons discussed the objections of defendant Emerson to the recommendations of the Pre-Trial Examiner are sustained.
Defendants raise two arguments in support of their motion for summary judgment: insufficiency of service of process and official immunity. Each point is discussed separately below.
Service of Process
Service of process must be effected in a manner consistent with Rule 4(f) of the Federal Rules of Civil Procedure, which requires service to be made within the territorial limits of the state in which the district court is held, except when extra-territorial service is authorized by statute or another federal rule. Defendants assert, and plaintiff does not contest, that service was made on defendant Keeney in California, defendant Edgerton in New York and defendant Emerson in Maryland. Service of process in this action was clearly improper unless some statute carves out an exception to the territorial limitations of Rule 4(f).
In 1962 Congress did enact legislation which affected the means by which service may be made on government officials.
In addition to conferring on the district courts original jurisdiction of actions in the nature of mandamus (28 U.S.C. § 1361) the legislation added subsection (e) to the general venue provisions of section 1391 of Title 28:
A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action.
The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.