segregable from legal theories. With regard to the majority of the documents, we are merely told in a conclusory fashion that they contain advisory information with respect to the Fonda v. Gray lawsuit. We are not told to what extent they contain the mental impressions, conclusions, opinions, or legal theories of defendants' attorneys or representatives in anticipation of litigation or trial which may be segregable. This meager showing, coupled with the Agency's failure to release any segregable portion of any document withheld on the basis of exemption 5, has led the Court to conclude that it must conduct an in camera examination of the matters withheld on the basis of exemption 5 alone to determine the propriety of defendants' claims.
Exemption 6. Defendants have asserted exemption 6 as authority for withholding portions of 138 documents.
This exemption protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). It refers to "intimate details" of a "highly personalized nature" relating to specific individuals, Getman v. NLRB, 146 U.S. App. D.C. 209, 450 F.2d 670, 675, stay denied, 404 U.S. 1204, 92 S. Ct. 7, 30 L. Ed. 2d 8 (1971), and only protects such information from clearly unwarranted invasions of personal privacy. The phrase "clearly unwarranted" compels a balancing test between the individual's right of privacy and the public's right to Government information. Id. at 677 n.24.
The record in this case reveals that exemption 6 was claimed as authority to withhold "information concerning other individuals." Briggs I Affidavit, para. 18. There is no indication that this "information" is contained in "personnel or medical files or similar files," or that it consists of "intimate details of a highly personalized nature" for any particular document, as required by the FOIA. Upon this showing, the Court cannot sustain the assertion of exemption 6.
Moreover, defendants' showing that any invasion of privacy that might result from disclosure would be clearly unwarranted is insufficient. The Briggs I Affidavit merely asserts that the mention of an individual in a CIA file is easily misunderstood by the general public and has negative connotations. Id. This bare statement does not provide the Court with enough information to perform the balancing test required by Getman and does not therefore sustain defendants' burden.
Exemption 7(F). The defendants have withheld portions of 31 documents on the basis of exemption 7(F).
This exemption protects from disclosure "investigatory records compiled for law enforcement purposes . . . to the extent that production of such records would . . . endanger the life or safety of law enforcement personnel." 5 U.S.C. § 552(b)(7)(F). The record indicates that the matters withheld on the basis of exemption 7(F) are names of Federal Bureau of Investigation (FBI) agents and that they were withheld at the request of the FBI. Briggs I Affidavit, para. 19.
Defendants have made no showing, nor have they even asserted, that the matters withheld on the basis of exemption 7(F) are "investigatory records compiled for law enforcement purposes." Likewise, they have not made any showing that release of the withheld matters would endanger the life or safety of law enforcement personnel. Defendants' affidavits, therefore, are legally insufficient under Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974), and other FOIA decisions in this Circuit to sustain defendants' claims to exemption. See also Ash Grove Cement Co. v. FTC, 167 U.S. App. D.C. 249, 511 F.2d 815 (1975); Pacific Architects & Eng'rs, Inc. v. Renegotiation Bd., 164 U.S. App. D.C. 276, 505 F.2d 383, 385 (1974); Retail Credit Co. v. FTC, [1971-1] Trade Cas. (CCH) P 60,727 (D.D.C. 1976).
III. Plaintiff's Motion for Participation of Counsel.
One final matter warrants our attention. Plaintiff has requested the Court to allow her counsel and experts of his choosing to assist it during any in camera inspection. Such a request has been denied by Judge Flannery of this Court in a similar case, Hayden v. CIA, Civil No. 76-284 (D.D.C. Oct. 18, 1976) (order partially granting plaintiff's motion for in camera inspection). We adopt the reasoning and conclusions of Judge Flannery.
An Order will issue accordingly.
John H. Pratt United States District Judge [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 434 F. Supp.]
Upon consideration of defendants' motion for summary judgment, plaintiff's cross motion for partial summary judgment, and plaintiff's motion for in camera review under a protective order, and in accordance with the accompanying Memorandum Opinion, it is this 8th day of July, 1977,
ORDERED, that plaintiff's motion for an order permitting participation of counsel in in camera proceedings be, and hereby is, denied; and further
ORDERED, that defendants' motion for summary judgment be, and hereby is, granted with respect to all documents and portions of documents withheld on the bases of exemptions 1 and 3 of the Freedom of Information Act or on the basis of exemptions 1 and 3 coupled together; and further
ORDERED, that plaintiff's motion for in camera review be, and hereby is, granted with respect to only those documents and portions of documents withheld solely on the bases of exemptions 2, 5, 6, and 7(F) or on the basis of any of these exemptions coupled with another; and further
ORDERED, that defendants submit for in camera review, under affidavit within 30 days of the date of this Order, all documents and portions of documents withheld solely on the bases of exemptions 2, 5, 6, and 7(F) or on the basis of any of these exemptions coupled with another, with the (exemptions) claimed for each document or portion of document clearly indicated in contrasting ink on the document itself.
John H. Pratt United States District Judge