But Congress also fashioned certain specific exemptions to the disclosure mechanisms of the Act. See, e.g., 5 U.S.C. § 552(b)(1). The information contained in document # 14 is specifically exempt from disclosure because the Executive Branch has determined that its release would cause "identifiable harm" to national security. While that determination is not one that would be agreed to universally, it is not so implausible that a Court, with its limited information and perspective, can lawfully disregard it, even on a De novo review. FOIA therefore compels exemption despite defendant's frank admission that the document describes an allegedly illegal payment, despite the Court's impression that "identifiable harm" of a different and more serious nature may later befall the national interest because the document has been withheld and despite possible disagreement as to identifiable harm threatened to the national interest by disclosure.
Documents # 15, 19. These documents contain the draft version and final copy of the United States' response to the Bahamian diplomatic note that was quoted in document # 1. For the same reasons as stated above in regard to document # 1, the Court finds that the (b)(1) exemption shields disclosure of this information.
The final paragraph of document # 15 is properly withheld for the same reasons as explained above in regard to document # 14.
Document # 16. As described in defendant's affidavits, this document is a cable from the U.S. Embassy in Nassau describing general procedures to be followed by the IRS in conducting investigations in the Bahamas. Paragraphs 1 (excepting the first sentence), 3 and 5(A) and (B) all involve State Department consideration of how to best respond to the information given to the U.S. Ambassador by the Bahamian Foreign Minister. The Foreign Minister's message was set forth in document # 9. These excerpts meet the "Confidential" criteria of E.O. 12065 for the same reasons as expressed above in regard to document # 9.
The remainder of the document deals with investigative techniques, exempt under (b)(7) and discussed later in this Memorandum.
Document # 18. Only one short phrase in this document is still classified as "Confidential" by defendant. That phrase refers to the discussion in document # 16 about IRS investigations in the Bahamas and, for the reasons stated with regard to that discussion, is properly exempt from disclosure.
Document # 22. Defendant claims that paragraphs 3-7 of this document are properly classified as "Confidential" because they "contain the Embassy's candid assessment of how the tax investigation issue fits into our overall relations with the Bahamas and its recommendations for action." See Vaky affidavit at 7. The Court finds, on the basis of the sensitive U.S.-Bahamas relations described by defendant in public and In camera, and on the basis of an In camera review of the document, that these paragraphs are properly classified as "Confidential"; their release may cause "identifiable damage" to national security. The document addresses the same general issues that are discussed in several of the other documents such as # 1, 15, and 19. Just as the Court was persuaded in those instances that defendant has properly classified the information as "Confidential," it is again so persuaded here.
Defendant also has claimed that FOIA's (b)(7) exemption justifies non-disclosure of portions of the withheld documents. Defendant specifically points to documents # 9, 10, 13, 14, 15, 16, 19 and 21 as qualifying for non-disclosure under (b)(7). Because the Court has already found that the (b)(1) exemption shields those portions of documents # 9, 14, 15 and 19 for which (b) (7) also is claimed, the Court will only examine (b)(7) applicability to documents # 10, 13, 16 and 21.
After careful review of the relevant legal standards, and after close scrutiny of defendant's affidavits, and of the documents themselves, the Court finds that (b)(7) properly exempts the materials in question from release under FOIA.
A. The (b)(7) Exemption
5 U.S.C. § 552(b)(7) states, in part, that FOIA's disclosure requirements do not apply to matters that are:
(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings . . . (C) constitute an unwarranted invasion of personal privacy . . . (E) disclose investigative techniques and procedures . . . .
Subsection (b)(7)(A) generally shields law enforcement records that relate to ongoing investigations and future enforcement proceedings, the disclosure of which would "interfere with those activities." See generally Mitsubishi Electric Corp. v. Department of Justice, 1977-1 Trade Cas. (CCH) P61,356 No. 76-0813 (D.D.C. Apr. 1, 1977).
The (b)(7)(C) provision of the exemption protects the identities of persons involved in a law enforcement investigation from disclosure. Subsection (b)(7)(E) permits law enforcement authorities to withhold information about investigative techniques and procedures which are not commonly known, in order that potential targets of investigations cannot use this information to avoid prosecution. See, e.g., Ott v. Levi, 419 F. Supp. 750 (E.D.Mo.1976).
B. Application of the (b)(7) Exemption
Application of the exemption to the four documents in question finds that the information has been properly withheld.
Document # 10. This document is a cable from the U.S. Embassy in Nassau to the State Department. It updates the progress of the IRS investigation in the Bahamas (P 1) and describes future plans and difficulties involved in the investigation (P 2-5). After In camera review of the document the Court concludes that the information is exempt under (b)(7)(A) and (b)(7)(E). The document's disclosure would affect the ongoing IRS tax investigation in the Bahamas (a grand jury is reportedly hearing evidence relating to the investigation); the document's candid assessment of certain investigative difficulties would, if disclosed, "frustrate the proceedings or construct defenses which would permit violations to go unremedied." See New England Medical Center Hospital v. National Labor Relations Board, 548 F.2d 377, 382 (1st Cir. 1977). No segregable portions of the document fall outside the bounds of the exemption.
Document # 13. Paragraphs 1-3 of this document describe the progress of the IRS investigations in the Bahamas, and include non-segregable references to persons involved in the investigation, problems that have arisen in the investigation, and future procedures to be followed by IRS investigators. The Court accordingly finds that this information is exempt under (b)(7)(C), (b)(7) (A) and (b)(7)(E), respectively. The final two paragraphs of the cable discuss the impact of some specific information that the investigation has uncovered. The information focuses on a matter that is being considered by a grand jury, See affidavit of Robert Cimino at 4, and that concerns an individual whose privacy would be invaded if the Court were to permit disclosure. The Court therefore concludes that the material in the final two paragraphs of this document are exempt under (b)(7)(A) and (b)(7)(C).
Document # 16. As discussed above, most of this document is exempt under (b) (1). Paragraphs 2, 4 and 5(C) and (D), however, all specifically discuss proposed investigative techniques for IRS law enforcement investigations in the Bahamas. An In camera inspection of the passages convinces the Court that the information falls squarely under exemption (b)(7)(E), with no segregable portions qualifying for disclosure.
Document # 21. Defendant has withheld the final sentence of this document, claiming applicability of (b)(7)(E).
Upon In camera review of the sentence, the Court finds that it contains a State Department comment on tax investigation techniques in the Bahamas, and therefore the short statement is properly exempt under (b)(7)(E).
Defendant contends that FOIA's (b)(5) exemption properly shields disclosure of portions of the documents requested by plaintiff. Most of the information allegedly exempted under (b)(5) is properly withheld under other FOIA exemptions.
The Court need only consider whether document # 17 is nondisclosable under (b)(5).
A. The (b)(5) Exemption
5 U.S.C. § 552(b)(5) states that FOIA's disclosure requirements do not apply to matters that are:
(5) inter-agency or intra-agency memorandum or letters which would not be available by law to a party other than an agency in litigation with the agency.