(2) That, during the plea-bargaining process, the Government made assurances that the identities of recipients and contributors would be released only in the context of a formal judicial proceeding initiated by the WSPF; and
(3) That disclosure of certain White House documents relating to the identity of contributors and recipients would violate the terms of an order of this Court.
In its pleadings, the Government has pressed only the first of these grounds as a basis for nondisclosure.
As to the request for material covering the WSPF probe into Conkling's involvement, the letter declined to confirm or deny the existence of such material, citing the WSPF policy of requiring a notarized authorization from the subject of the alleged investigation before responding to FOIA requests. Letter from Charles F. C. Ruff, Watergate Special Prosecutor, to Ken Cummins, CNS, at 2 (April 28, 1977). Such authorization does not appear from the record.
The letter closed by informing CNS of its right to challenge the denial of access by an action to compel production of the requested material, 5 U.S.C. § 552(a)(4)(B), there being no right of administrative appeal from the Special Prosecutor's denial of a FOIA request.
There appear no procedural impediments, in the way of failure to exhaust administrative remedies, or lack of standing or ripeness, to consideration of this matter on its merits.
B. FOIA EXEMPTION 7(C).
The sole question presented by the cross-motions is whether the FOIA mandates production of the materials requested, or any segregable portion thereof. The Government's argument for withholding the material rests upon one exemption only, i.e., that which governs "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C) (Supp. V 1975). The operative phrase, "unwarranted invasion of privacy," entered the Act by way of 1974 amendments intended to counteract judicial expansion of the investigatory files exemption. Freedom of Information Act and Amendments of 1974, Pub. L. No. 93-502, § 2(b), 88 Stat. 1563; see 120 Cong. Rec. S9336 (remarks of Sen. Hart). The language of FOIA Exemption 7(C) parallels that of Exemption 6, covering "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) (1970). Originally, Exemption 7(C) repeated the "clearly unwarranted" standard of Exemption 6, but the conferees on the 1974 amendments agreed to delete the word "clearly" in response to a Presidential request. See Letter from President Gerald R. Ford to Sen. Edward M. Kennedy (Aug. 20, 1974), reprinted in Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and Other Documents 368-70; Letter from Sen. Edward M. Kennedy, Chairman, Senate Conferees, and Rep. William S. Moorhead, Chairman, House Conferees, to President Gerald R. Ford (Sept. 23, 1974), reprinted in Source Book, supra, at 370-72. The difference in wording between the two exemptions was advised and not accidental; its effect is to make Exemption 7(C) a somewhat broader shield against disclosure than Exemption 6. See Department of the Air Force v. Rose, 425 U.S. 352, 378-79, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1975). The difference in breadth, in turn, is attributable to the inherent distinctions between investigatory files and personnel, medical and similar files: that an individual's name appears in files of the latter kind, without more, will probably not engender comment and speculation, while, as the Government argues here, an individual whose name surfaces in connection with an investigation may, without more, become the subject of rumor and innuendo. Defendants' Memorandum in Support of their Motion for Summary Judgment, at 6-7 (hereinafter defendants' Memorandum).
Despite this difference in breadth, the two exemptions are to be applied according to the same standard, a de novo balancing test, weighing the privacy interest and the extent of the invasion thereof against the public interest in disclosure, and "[tilting] the balance in favor of disclosure." Getman v. N.L.R.B., 450 F.2d 670, 674, 146 U.S. App. D.C. 209, 213 (1971) (Exemption 6).
Another variable to be weighed is the degree to which the requesting party could obtain the material sought from an alternate source. Rural Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 78, 162 U.S. App. D.C. 122, 127 (1974).
C. INFORMATION ON RECIPIENTS AND CONTRIBUTORS.
The affidavit of former Special Prosecutor Ruff describes the material on contributors and recipients of Townhouse Operation funds as follows:
"12. The documents relating to contributors and recipients consist of accounting ledger sheets. With regard to contributors, the names of the contributor [sic] is listed, together with an amount, or if payments were made to normal political committees, the names of the committee and the amount of the contribution is listed. With regard to recipients, who are listed by state, the date of delivery, the names of the actual recipient and the name of the political committee of a candidate with whom he is associated and the amount are listed.