does not control the facts of the case before the Court.
Plaintiffs also cite Machin v. Zuckert, 114 U.S. App. D.C. 335, 316 F.2d 336 (D.C. Cir.), cert. denied, 375 U.S. 896, 11 L. Ed. 2d 124, 84 S. Ct. 172 (1963), in which the court held that the opinions and conclusions in an Air Force Accident Investigative Report were discoverable. That case concerned the factual findings, opinions, and conclusions of specialized mechanics regarding possible defects in propellers that may have caused an airplane crash. In relying on Machin, however, plaintiffs overlook that the opinions and conclusions of airplane mechanics in an accident investigation would be considerably less subjective than opinions and conclusions regarding personnel management irregularities and other matters of Army management policy and personnel relations.
Furthermore, in the instant case, the investigator was neither acting in his field of expertise nor making final findings and conclusions on the alleged personnel mismanagement.
Plaintiffs' reliance on Vaughn and Machin reflects their inaccurate characterization of the Inspector General's Report and its role in the Inspector General process. The affidavits submitted by the defendants and the applicable Army regulation make clear that Inspector General reports play an integral part in the consultative process leading to a commander's final decision about a matter investigated. Accordingly, the Court concludes the "Discussions and Conclusions" parts of the Report, which are primarily deliberative in nature, are properly exempt from disclosure.
C. Defendants' Argument that the Witnesses' Statements are Within the Scope of Exemption Five.
Attached to the Inspector General's Report upon its submission to the Commander were the transcripts of testimony of several witnesses. Three of the witnesses have not consented to the disclosure of their statements to plaintiffs. Defendants argue that the statements fall within several exemptions, but the Court considers only the applicability of Exemption Five and concludes that the witnesses' statements are covered by that exemption.
Plaintiffs concede, as they must, that a qualified privilege from disclosure exists under Exemption Five for witnesses' statements when confidentiality is essential to securing information from witnesses. See Machin v. Zuckert, 114 U.S. App. D.C. 335, 316 F.2d 336 (D.C. Cir. 1963); Brockway v. Dept. of Air Force, 518 F.2d 1184 (8th Cir. 1975); Rabbitt v. Dept. of Air Force, 401 F. Supp. 1206 (S.D.N.Y. 1974). Thus, the issue before the Court is whether an exemption from general public disclosure is necessary for the securing of full testimony from witnesses during an Inspector General's investigation of Army management practices.
Plaintiffs, in arguing in favor of disclosure, narrowly focus on the question of whether public disclosure of the witnesses' statements will deter further cooperation in the instant case. The Court, however, in deciding whether the witnesses' statements should be exempt from disclosure under the FOIA, must concentrate on the probable effect of a holding in favor of disclosure on the future operation of the Inspector General process. At the outset, it is clear that in this case promises of confidentiality were not necessary for securing the testimony of employees in the division being investigated.
Moreover, the witnesses were not given absolute assurances of confidentiality; they were told that public disclosure of direct testimony might be required, but would be "kept to the minimum necessary for satisfaction of the legal or public interest requirements."
Although absolute confidentiality is not necessary to obtain Department of Defense employees' testimony in Inspector General investigations, the Court is of the opinion that disclosure of such testimony under the FOIA will interfere considerably with the Inspector General's capacity to conduct full investigations. The witnesses connected with the instant case, and other witnesses currently testifying in Inspector General investigations, are on notice that in unusual circumstances their testimony may be publicly disclosed.
It is doubtful that this limited qualification itself acts as a major barrier to candid and full testimony by witnesses. On the other hand, common sense dictates that a warning to witnesses that their testimony will be generally disclosable under the FOIA would discourage candor and would severely limit the effectiveness of Inspector General investigations. In cases of management irregularities, the degree to which persons will cooperate by volunteering their unsolicited testimony and by testifying fully depends largely on the degree to which they believe their testimony will remain confidential. The Court views as unrealistic plaintiffs' suggestion that the facts of each particular case be examined to determine whether nondisclosure of witnesses' statements is justified. Witnesses in future Inspector General investigations, many of which undoubtedly will concern more controversial matters than the present case, cannot be expected to rely on an uncertain assurance that a court will not require public disclosure of their testimony.
The Court therefore concludes that the witnesses' statements are non-disclosable because they are within Exemption Five.
OLIVER GASCH / Judge
Upon consideration of plaintiffs' and defendants' motions for summary judgment, the memoranda of points and authorities filed in support and opposition thereto, and upon further consideration of the argument of counsel in open Court, the entire record herein, and for the reasons set forth in the Court's Memorandum issued this day, it is by the Court this 5th day of December, 1977,
ORDERED that the motion of defendants for summary judgment be, and hereby is, granted; and it is further
ORDERED that the motion of plaintiffs for summary judgment be, and hereby is, denied; and it is further
ORDERED that plaintiffs' complaint be, and hereby is, dismissed.
OLIVER GASCH / Judge