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FUND v. NATIONAL ARCHIVES & RECORDS SERV.

August 31, 1978

FUND FOR CONSTITUTIONAL GOVERNMENT, Plaintiff,
v.
NATIONAL ARCHIVES AND RECORDS SERVICE, Defendant.



The opinion of the court was delivered by: FLANNERY

MEMORANDUM

This matter comes before the court on defendant's motion for summary judgment. This suit is brought pursuant to the Freedom of Information Act, 5 U.S.C. § 552, as amended. Plaintiff originally sought access to records kept by the Watergate Special Prosecution Force (WSPF) relating to six distinct investigations: (1) the I.T.T. investigation; (2) the Milk Fund investigation; (3) the investigation of corporate campaign contributions *fn1" ; (4) the inquiry into the "18 1/2 minute gap" in the White House tapes; (5) the "Townhouse" campaign contributions investigation; and (6) the "Hughes-Rebozo" investigation. This FOIA request covers a voluminous number of documents, and when it became apparent that the processing of this request would take an understandably long time, plaintiff agreed to allow defendant to submit indexing and justification statements only for the closing memoranda, or their functional equivalents, which summarized the findings of the various investigations. At the time this agreement was reached, defendant had completed a Vaughn statement regarding the entire "Townhouse" file. Defendant subsequently submitted Vaughn statements regarding the closing memoranda for the I.T.T. and the Hughes-Rebozo files. As for the Milk Fund, Corporate Contributions, and Tape Gap files, the WSPF had prepared no closing memoranda, so defendant, with the approval of plaintiff, has submitted Vaughn statements for prosecution memoranda prepared for each file during the course of the investigations.

 Although it appears that the Vaughn statements submitted by defendant are sufficiently detailed to allow this court to dispose of this motion, it also appears that this court may not in any case grant complete summary judgment for the defendant at this time. As indicated above, the parties have agreed to the processing of the closing memoranda or their functional equivalents. Despite the fact that these closing memoranda are quite lengthy and detailed, it does not appear that plaintiff has abandoned its claim for the underlying documents accumulated by the WSPF. Therefore, except for the "Townhouse" file, which has been the subject of a complete document-by-document review, the court will treat this motion as one for partial summary judgment which will not finally dispose of this case. Also, since the closing memoranda and the Vaughn statements submitted in affidavit form by defendant are fairly complex, the court will proceed by analyzing the extent of each exemption claim made by defendant, and then indicating which of the deletions were justified by those exemptions.

 I. Exemption b(7)(C).

 Exemption 7(C) has been claimed as the basis for a large number of deletions in all six of the investigatory memoranda. Exemption 7(C) exempts from compulsory disclosure:

 
investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . (C) constitute an unwarranted invasion of personal privacy.

 Plaintiff admits that all of the memoranda and documents in question were investigatory records compiled for law enforcement purposes except for the closing memoranda for the I.T.T. and Hughes-Rebozo files. As to those two documents, plaintiff feels that since they were prepared after the investigations had been completed, they do not qualify under the b(7)(C) exemption. As primary support, plaintiff cites the decision in Koch v. Department of Justice, 376 F. Supp. 313, 316 (D.D.C. 1974) (Information maintained solely for public or Congressional relations, or concerned solely with organizational matter, is not exempt as investigatory material). However, in Koch, the court dealt with two sets of files maintained by the F.B.I. The general organization or public relations information referred to above was contained in a biographical file the F.B.I. maintained on all Congressmen as a matter of course. The other file dealt with background investigations of persons nominated to high government posts. Regarding these last files, the court in Koch stated, "In order to insure such confidentiality, F.B.I. files may be withheld if law enforcement was a significant aspect of the investigation for which they were compiled . . .." Id. at 315. The records involved in this case are akin to this second set of files in Koch, for though the final memoranda were prepared to report to Congress, they were also prepared as part of an on-going investigative and disciplinary effort delegated to the WSPF. As such, they would appear to be investigatory records compiled for law enforcement purposes within the meaning of exemption 7(C).

 In light of this, the court must determine the extent to which disclosure of any of the withheld information would constitute an unwarranted invasion of privacy. When dealing with the FOIA exemptions relating to personal privacy, a court must balance the individual's interest in privacy against the public's right to know. Department of Air Force v. Rose, 425 U.S. 352, 96 S. Ct. 1592, 1608, 48 L. Ed. 2d 11 (1976) (Exemption b(6)); Rural Housing Alliance v. United States Department of Agriculture, 162 U.S.App.D.C. 122, 126, 498 F.2d 73, 77 (D.C.Cir. 1974); Tax Reform Research Group v. Internal Revenue Service, 419 F. Supp. 415, 419 (D.D.C. 1976). In Rose, supra, the Supreme Court indicated that, while exemption (b)(6) applied only to "clearly unwarranted" invasions of privacy, Congress had explicitly dropped such a stringent requirement when enacting exemption (b)(7)(C), making the latter exemption applicable where invasion of privacy would simply be unwarranted. 96 S. Ct. at 1607 n. 16. The Fourth Circuit has determined that, as the government in this case argues, in light of Rose, greater weight should be given to a claim of personal privacy under exemption (b)(7)(C) than under exemption (b)(6). Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1136 n. 7 (4th Cir. 1977). Similarly, the court in Congressional News Syndicate v. United States Department of Justice, 438 F. Supp. 538 (D.D.C.1977), stated:

 
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. . . . 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.

 Id. at 541. Although the court in Congressional News Syndicate did not reach the conclusion that personal privacy interests must be accorded greater weight under exemption 7 than under exemption 6, that court's reasoning, together with the language of the Fourth Circuit and the Supreme Court, would seem to compel that result. Due to the nature of the exemption claim, it appears that the balance is not so tilted in favor of disclosure in cases involving exemption b(7)(C). See Luzaich v. United States, 435 F. Supp. 31, 36 (D.Minn.1977) (bias in favor of disclosure diminished in cases involving exemption b(7)(C)).

 Having determined that a claim of personal privacy is entitled to greater weight under exemption 7(C) than under exemption 6, the court must now assess the various factors present in this case and determine whether disclosure is warranted. In Rural Housing Alliance v. U. S. Department of Agriculture, supra, the court determined that Exemption 6, which is more stringent than exemption 7(C), was "phrased broadly to protect individuals from a wide range of embarrassing disclosures." Among the types of disclosure which the court determined would warrant exemption were matters involving materials containing "information regarding marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, reputation and so on . . .." Id. 162 U.S.App.D.C. at 126, 498 F.2d at 77. (Emphasis added.) Put another way, the exemption would apply to matters which under normal circumstances "would prove personally embarrassing to an individual of normal sensibilities . . . ." Committee of Masonic Homes v. N. L. R. B., 414 F. Supp. 426, 431 (E.D.Pa. 1976). But see Marathon LeTourneau Co., Marine Div. v. N. L. R. B., 414 F. Supp. 1074, 1084 (S.D.Miss.1976) (although exemption 7(C) applied to matters most commonly thought of as private, it did not apply to a situation where the government sought to withhold affidavits and statements of individuals scheduled to be witnesses at pending N.L.R.B. proceeding). It is clear in this case that much of the information withheld would cause severe personal embarrassment if released due to the still lingering repercussions of Watergate. Most of this information involves the identification of individuals who, though investigated, were charged with no crime. The prosecutor's authority to decide whether or not to charge an individual with a crime is an area traditionally left to the prosecutor's discretion, and is, therefore, only rarely subjected to judicial review. Thomas & Fitch, "Prosecutorial Decision Making," 13 Am.Crim.L.Rev. 507, 511-530 (1976). An individual does not lose his right to privacy simply because he has been investigated and subsequently not charged with any offense. Indeed, such an individual may require even greater protection, especially where, as here, the mere connection of an individual's name with a well-known investigation may be both embarrassing and damaging.

 Another factor which this court must consider is the use to which the plaintiff wishes to put this information. Tax Reform Research Group v. I. R. S., supra, 419 F. Supp. at 419-20. Accord, Luzaich v. United States, supra, 435 F. Supp. at 36. In this regard, the opinion in Tax Reform Research Group, supra, is especially instructive. In that case, plaintiff, a public interest group monitoring the Internal Revenue Service, requested information regarding the political ties between the Service and the Nixon White House so as to ascertain the extent to which the White House had ordered audits of certain individuals. Congress had completed its investigation into this matter, and that investigation uncovered no wrongdoing on the part of the individuals in question. The court found that there was no reasonable expectation of the production of any further evidence of wrongdoing, and therefore that releasing this information would serve no useful purpose while exposing the investigated individuals to unwarranted notoriety. Id. at 420. In the present case, all three branches of the Federal Government have thoroughly assessed the Watergate scandal, and it does not appear that any further prosecutions are anticipated at this time. It is, therefore, difficult to see how plaintiffs would be fulfilling their stated intention of exposing governmental wrongdoing under these circumstances.

 Finally, the court may consider whether any of the individuals whom the government seeks to protect gave information with the anticipation that their privacy would remain intact. In Forrester v. Department of Labor, 433 F. Supp. 987 (S.D.N.Y.1977), the court stated:

 
Public policy requires that individuals may furnish investigative information to the government with complete candor and without the understandable tendency to hedge or withhold information out of fear that their names and the information they provide will later be open to public view.

 Id. at 989. Forrester dealt with a situation in which individuals had furnished investigatory information to the government voluntarily. To the extent that the deletions in the present documents reflect such considerations, those exemptions will be upheld. Of course, a large number of deletions occurred because the information involved was allegedly derived from grand jury testimony. As such, the government claims this information is exempt under exemption (b)(3), which is discussed infra.

 In light of this analysis, the court is convinced that a majority of the deletions made pursuant to exemption b(7)(C) excise information which is properly exempt from disclosure. There are, however, exceptions, and these are all found in the Third, Fifth and Sixth Affidavits submitted by defendant.

 The Fifth Affidavit deals with the "Townhouse" file, and that file was also the subject of the FOIA request analyzed in Congressional News Syndicate v. United States Department of Justice, supra. The court in that case determined that where campaign contributions were involved, the Federal Corrupt Practices Act, c. 368, title III, §§ 303-304, 43 Stat. 1071 (1925), repealed Pub.L. No. 92-225, title IV, § 405, 86 Stat. 20 (1972), expressed the public policy that all persons who make and receive such contributions must report them. 438 F. Supp. at 543. The court, therefore, concluded that there was no personal privacy interest involved in these contributions and receipts, and that, therefore, certain deleted information should be released. Id. The government has decided not to appeal that decision, and has, therefore, abandoned some of its exemption b(7)(C) claims for the "Townhouse" file. In light of this, the court will order the release of the information withheld in deletions 10a, 13a, 14a, 25a, 31, 33, and 33a of the Fifth Affidavit since these are the instances in which the government withheld information regarding persons who actually violated the Act.

 Similarly, it does not appear that the Congressional News Syndicate must be restricted to its facts. The court in that case was not concerned solely with the factual situation before it, but with "the Act's status as an articulation of the overriding public interest in the integrity of the process by which political campaign contributions are made and received." 438 F. Supp. at 543 n. 3. The Corporate Contributions file, which is the subject of the Third Affidavit, involves such campaign practices, and there is no reason why the holding in Congressional News Syndicate should not be expanded to include this additional Watergate file. Therefore, the court will order that the government release the information contained in those deletions made regarding persons whose activities constituted actual wrongdoing within the meaning of the Act. The following deletions as listed in the Third Affidavit should be released since they are not otherwise exempt:

 
H.M.S. Electric Corp. & Charles N. Huseman 2
 
American Airlines Co. 1, 3-11
 
Ratrie, Robbins & Schweitzer, Inc., Harry Ratrie & Augustus Robbins III 5-18
 
Braniff Airlines 1, 3
 
Diamond International Corp. 1-4, 6-11
 
Goodyear Tire & Rubber Co: Russell deYoung, Chairman of the Board 20
 
Carnation Co. 1, 10
 
LBC&W Inc., & William Lyles, Sr. 8-10, 11, 17
 
Northrop Corp. & Thomas V. Jones 23
 
American Shipbuilding Co./George M. Steinbrenner III/John H. Melcher, Jr. 27a, 35, 72-74, 88-89, 91-92
 
Gulf Oil & Claude C. Wild 1

 All of the other deletions made pursuant to exemption b(7)(C) in the Third Affidavit and its supplement have been validly made.

 Finally, as to the Sixth Affidavit, six deletions, namely B3-B4, B73-B74, B90, and B101, appear to be improperly made. They all relate to evaluations of the job performances of various individuals employed by the government during the investigation. These do not qualify as investigative materials, and would seem therefore to be beyond the scope of Exemption 7(C). The government has not claimed exemption 6 as a basis for these deletions (personnel information the release of which would be a clearly unwarranted invasion of privacy), and therefore the information contained in these six deletions must be released.

 With these exceptions, all other claims made pursuant to exemption b(7)(C) are proper. The following is a listing of those claims, with a statement of the justification for the exemption:

 A. The following deletions were properly made pursuant to Exemption 7(C) on the grounds that these segments contained allegations, suppositions, assessments, or speculations of wrongdoing on the part of individuals not prosecuted:

 
1st Affidavit (I. T. T.) : A18 n*, A40 *, B1-B4, B7, B9, B10 *, B12-B13, B16, B20-B22, B25-B29, B32-B33, B40, B43-B44, B46, B50-B52, B56-B58, B67, B71;
 
n* indicates that the deletion may be justified by more than one exemption, or more than one reason under a given exemption, and therefore appear in more than one list.
 
2d Affidavit (Milk Fund) :
 
Chestnut Memo : 5;
 
Nelson Memo : 20;
 
Mehren Prosecution Memo (7/19/74); 4, 10;
 
Russell Memo : 26;
 
Connally Memo : 18;
 
Associated Milk Producers Memo : 3, 9, 11;
 
3d Affidavit (Corporate Contributions) :
 
Greyhound Corp.: 1-2, 4-6, 8-46;
 
Ashland Oil Co.: 1-22;
 
Prosecution of Ratrie, Robbins & Schweitzer, Inc., Harry Ratrie, and Augustus Robbins III: 1-4, 20;
 
Braniff Airlines: 4-22;
 
Time Oil: 1-54; 55 *, 56-57;
 
Diamond International Corp.: 5;
 
Goodyear Tire and Rubber Co.; Russell deYoung, Chairman of the Board: 1-19, 21;
 
Carnation Co.: 2-9;
 
LBC&W, Inc. and William Lyles, Sr.: 1-5, 6 ...

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