of such investigations, would likely cause such persons embarrassment and perhaps even lead to their harassment. Similarly, identification of the agents who participated in the preparation of such investigative reports and of the individual who furnished the FBI with telephone information may cause such individuals to be harassed.
Against this privacy invasion must be weighed the public interest in the disclosure of such information. Plaintiffs have identified no particular interests other than their own personal curiosity that would be served by the release of such information, and the Court has been unable on its own to identify any substantial interests, either public or private, that would be served by the disclosure of the withheld portions of the FBI documents here in issue. Accordingly, the Court holds that defendants have sustained their burden of proving that the disclosure of these withheld portions would "constitute an unwarranted invasion of personal privacy," and the Court will therefore grant defendants' motion for summary judgment with respect to these documents.
(2) The IRS Inspection Division Report
While the affidavit of Assistant Commissioner Warren A. Bates, which accompanied the release of the IRS Inspection Division report sought by plaintiffs, is not as detailed as that provided by the FBI, it certainly suffices to permit the Court to determine the appropriateness of defendants' invocation of the claimed FOIA exemptions. The Inspection Division report sought by plaintiff has been identified as a record compiled by the IRS in its investigation of possible corruption concerning certain IRS employees in the Manhattan District. The portions of the report not released to plaintiffs contain the following information: the identities of or identifying information about the particular Service employees who were the subject of the investigation; identifying information about persons who associated with these employees; and the identities of eight unrelated taxpayers.
For the same reasons that the Court sustained the FBI's invocation of exemption 7(C), the Court will sustain the IRS' invocation of this exemption in connection with the Inspection Division report sought by plaintiffs. Defendants have sustained their burden of proving that the release of the withheld information would likely cause an invasion of personal privacy, and there is neither a substantial public nor private interest in the release of the withheld information. Accordingly, the Court will also grant defendants' motion for summary judgment with respect to the report of the IRS Inspection Division.
B. The Appropriateness of Defendants' Invocation of Exemption 7(A) as the Basis for Withholding the Documents in the United States Attorneys' Offices and the Remaining IRS Documents Cannot be Determined Until the Defendants Submit for In Camera Inspection Detailed Affidavits.
As the basis for withholding the documents in the United States Attorneys' Offices for the District of New Jersey and for the Southern District of New York and the remaining IRS documents, defendants have invoked exemption 7(A). Exemption 7(A) exempts from disclosure under the FOIA "investigatory records compiled for law enforcement purposes . . . to the extent that the production of such records would (A) interfere with enforcement proceedings." Defendants maintain that the release of the documents sought by the plaintiffs would interfere with pending and prospective criminal and civil enforcement proceedings against plaintiff Tarnopol by disclosing to him "the evidence which has been assembled against him, as well as that evidence which the Government has been unable to uncover [and] would reveal the precise direction and scope of the prosecution." (Defendants' Statement of Material Facts, para. 9 (July 1, 1977)).
Heretofore, the defendants have not submitted a detailed index of the withheld documents or a detailed justification corresponding thereto for the withholding. Defendants admit that in the run-of-the-mill FOIA case, such an index and justification should ordinarily be prepared and provided to the plaintiff and the court. See Phillippi v. CIA, 178 U.S. App. D.C. 243, 546 F.2d 1009 (1976); Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973). They argue, however, that the instant case is exceptional in that the release of the index sought by plaintiffs would itself interfere with the Government's enforcement proceedings by providing plaintiffs with the very information that defendants assert is exempt under the FOIA.
Neither of the parties herein has provided the Court with persuasive authorities to support their countervailing positions. The Court has in its own research, however, discovered a recent decision by Judge Decker of the Northern District of Illinois, Kanter v. IRS, 433 F. Supp. 812, at 820, 77-2 USTC P 9473, at 87,535 (N.D. Ill. 1977), which appears to be on point with regard to defendants' exemption 7(A) argument herein. In that case, Judge Decker agreed with the Government that
a detailed index would be a cure as perilous as the disease. Such an index would enable the astute defendants in the criminal case to divine with great accuracy the identity and nature of the information in the possession of the prosecution.
Id. 433 F. Supp. at 820, at 87,540.
This Court agrees fully with Judge Decker that the Government should not be required to disclose a detailed index and justification in cases such as this where such disclosure would itself undermine the policies served by an exemption to the FOIA. See Mead Data Corp. v. United States Department of the Air Force, 566 F.2d 242 at 261 (D.C.Cir. 1977) ("[Agencies] should not be forced to provide . . . a detailed justification that would itself compromise the secret nature of potentially exempt information.") This Court also agrees fully with Judge Decker that notwithstanding the aforestated conclusion, it is not sufficient for the Government to rely on summary affidavits that do not enable "the court to go beyond the labels which the defendants seek to apply" to the documents in issue, id. at 821, at 87,541; rather, the defendants must satisfactorily prove to the Court their "entitlement to the exemption" by demonstrating that they are "not seeking to withhold more than is absolutely necessary to satisfy the purposes of the exemption." Id. at 822, at 87,542.
The Court concludes that Judge Decker's solution to the problem posed by exemption 7(A) cases such as the present case is correct and appropriate and fully consonant with the purposes of the FOIA, and the Court will therefore follow his lead. Accordingly, the Court will order defendants to submit for in camera inspection within 30 days of the date of this Memorandum and accompanying Order a detailed index and corresponding justification for the withholding as required by the Vaughn and Phillippi cases, and by Judge Decker's opinion in the Kanter case. The Court will therefore deny the cross-motions for summary judgment insofar as they pertain to the documents withheld under exemption 7(A) without prejudice to renewal of such motions at the time the defendants submit the required affidavits for in camera review.
An Order in accordance with the foregoing will be issued of even date herewith.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 442 F. Supp.]
Upon consideration of the cross-motions for summary judgment, and the respective points and authorities in support thereof and in opposition thereto, and for the reasons set forth in the Court's Memorandum of even date herewith, it is, by the Court, this 30th day of September, 1977,
ORDERED, that defendants' motion for summary judgment be, and the same hereby is, granted with respect to the FBI documents and the report of the IRS Inspection Division; and it is
FURTHER ORDERED, that plaintiffs' motion for summary judgment with respect to the FBI documents and the report of the IRS Inspection Division be, and the same hereby is, denied; and it is
FURTHER ORDERED, that the defendants shall prepare and submit for in camera review within 30 days of the date of this Order detailed affidavits as required by Phillippi v. CIA, 178 U.S. App. D.C. 243, 546 F.2d 1009 (D.C. Cir. 1976), Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), and Kanter v. IRS, 77-2 USTC [*] 9473 (N.D. Ill. 1977), for those documents withheld by the Internal Revenue Service and the Department of Justice pursuant to exemption 7(A); and it is
FURTHER ORDERED, that the parties' cross-motions for summary judgment with respect to the documents withheld pursuant to exemption 7(A) be, and the same hereby are, denied without prejudice to renewal at such time as the required affidavits are submitted for in camera review.