The opinion of the court was delivered by: BRYANT
The Founding Church of Scientology of Washington, D.C. brought this action against the Department of the Treasury, its Secretary and Deputy Assistant Secretary for Enforcement and Operations, and the United States National Central Bureau ("NCB") of the International Police Organization ("Interpol") and its chief, seeking the disclosure of certain records under the Freedom of Information Act (hereinafter "Act"), 5 U.S.C. § 552.
After long and often unnecessary detours,
the case has culminated in a dispute over the defendants' assertion of three exemptions to some or all of thirty-seven documents.
On January 28, 1980 at the court's request the defendants submitted the documents in dispute in camera to aid the court in resolving the remaining contentions of both parties.
The court premises its resolution of this dispute on both the basic structure of the Act and recent opinions by the United States Supreme Court regarding the purposes of the Act. The Act is drafted in an unmistakable fashion. All records held by agencies of the United States Government are covered by the Act unless they are specifically exempted by the nine subsections of § 552(b). Further, the burden is on the agency asserting the exemption to prove its applicability. § 552(a)(4)(B).
In a number of cases over the recent past the Supreme Court focused attention on the operation of this unusual Act. As Justice Thurgood Marshall noted in 1978, the Supreme Court has "repeatedly emphasized (that) "the Act is broadly conceived,' EPA v. Mink, (410 U.S. 73, 80 (93 S. Ct. 827, 832, 35 L. Ed. 2d 119) (1973)) and (that) its "basic policy' is in favor of disclosure, Department of Air Force v. Rose, (425 U.S. 352, 361 (96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 ) (1976))." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220, 98 S. Ct. 2311, 2316, 57 L. Ed. 2d 159 (1978).
With this in mind the court will consider the three exemptions at issue. Defendants assert exemption § 552(b)(2) to withhold file and code numbers that appear on various documents. Defendants' Motion for Summary judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment at 10-13. Section (b)(2) exempts matters "related solely to the internal personnel rules and practices of an agency." The Supreme Court dealt with this exemption in a lengthy opinion in 1976. Dept. of Air Force v. Rose, supra. In Rose the Court held that while exemption (b)(2) is not applicable to "matters subject to . . . a genuine and significant public interest," the exemption does apply to "routine matters" of "merely internal significance" "in which the public could not reasonably be expected to have an interest." 425 U.S. at 369-70, 96 S. Ct. at 1603. The court is unable to ascertain any legitimate public interest in the file and code numbers at issue and will therefore sustain the defendants' assertion of exemption (b)(2) as to documents 2A, 3, 3A, 9, 10A, 13, 14, 15 and 19. See, e.g., Nix v. United States, 572 F.2d 998, 1005 (4th Cir. 1978); Maroscia v. Levi, 569 F.2d 1000, 1001-02 (7th Cir. 1977).
Next, the defendants assert exemption (b)(7)(C) to protect the names and the personal identifiers of persons referred to in certain documents. Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment at 13-15. Section (b)(7)(C) protects from disclosure portions of "investigatory records compiled for law enforcement purposes" that would "constitute an unwarranted invasion of personal privacy."
In the present case the names and personal identifiers are, with a single exception,
of governmental officials. To apply § (b)(7)(C) the court must assess the interest in privacy and weigh it against any public interest in disclosure. Department of the Air Force v. Rose, 425 U.S. at 372-73, 96 S. Ct. at 1604-1605; see also Retail Credit Co. v. FTC, 1976-1 Trade Cases 68,124, 68,128 (D.D.C.1976) (Jones, C. J.), citing Getman v. NLRB, 146 U.S. App. D.C. 209, 450 F.2d 670, 674 (D.C.Cir.1971) (J. Skelly Wright, J.) Once again the court is unable to ascertain any public interest in the revelation of these names in this case. As the court in Nix v. United States noted, in a matter arousing greater public interest, nondisclosure of these officials' identity might be overborne by the legitimate interest of the public. 572 F.2d 998, 1006 (4th Cir. 1978), citing Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1136-37 (4th Cir. 1977). But see, Ferguson v. Kelley, 448 F. Supp. 919, 924 (N.D.Ill.1978). This ruling applies to both the names of public officials and the third party mentioned in one of the police documents. Nix v. United States, 572 F.2d at 1006; Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977); Lamont v. Department of Justice, 475 F. Supp. 761, 777 (S.D.N.Y.1979) (Weinfeld, J.).
The last exemption involved, (b)(7)(D), has been asserted by defendants for all thirty-seven documents in question. Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment at 15-19. Section (b)(7)(D) protects "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records . . . disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, . . . confidential information furnished only by the confidential source." The court will analyze the application of § (b)(7)(D) to this case in two parts, looking first at the question of disclosing the "identity of a confidential source" and, second, at the question of disclosing "confidential information furnished only by the confidential source."
In order to qualify under § (b)(7)(D) to withhold the identity of a confidential source the defendants must show that the documents involved are "investigatory records compiled for law enforcement purposes." The records are in the possession of Interpol, which "serves mainly as a clearinghouse and relay center for information on crime and criminals for police forces in 130 member countries," Affidavit of James B. Clawson at 4, and has no law enforcement powers. Despite its lack of law enforcement authority, there can be no question that the records involved here were compiled by Interpol to relay to other police entities "for law enforcement purposes."
It is not clear from the face of the statute whether "confidential source" includes foreign, state and local law enforcement agencies. The Supreme Court has directed that the courts turn to legislative history when confronted with such ambiguity. Train v. Colorado Pub. Interest Research Group, 426 U.S. 1, 9-10, 96 S. Ct. 1938, 1942, 48 L. Ed. 2d 434 (1976). Whatever ambiguity lies in the statute must be forever dispelled by the rather lengthy legislative history on this point. This court could not improve on the careful workmanship of Circuit Judge Wallace in a recent dissent and will therefore quote it at length:
As originally proposed by Senator Hart, subsection (b)(7)(D) exempted "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . disclose the identity of an informer . . . ." See House Comm. on Government Operations & Senate Comm. on the Judiciary, 94th Cong., 1st Sess., Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and Other Documents 332 (Joint Comm. Print 1975) (hereinafter cited as Source Book). At the time of his introduction of the amendment, Senator Hart stated:
Fourth, the amendment protects without exception and without limitation the identity of informers. It protects both the identity of informers and information which might reasonably be found to lead to such disclosure. These may be paid informers or simply concerned citizens who give information ...