aware of the breadth of activities recorded by the government's videotape devices. Release of the tapes would definitively reveal exactly what evidence the government has compiled. It could also alert other potential defendants as to the nature of the evidence held against them.
It is improper for the government to release such evidence before indictment. Should indictment occur, Congressman Murphy enjoys an unqualified right to examine the tapes. Fed.R.Crim.P. 16. The FOIA, however, cannot alter "the explicit discovery procedures set forth in Rule 16, Fed.R.Crim.P." United States v. Murdock, 548 F.2d 599, 602 (5th Cir. 1977).
The leaks that have occurred fail to alter this conclusion. The limited nature of the authorized leaks, along with their purpose of obtaining cooperation in the investigation, establish that they fall within the domain of prosecutorial discretion.
The unauthorized leaks may have injured the government's interest in effectively pursuing enforcement actions. But the rationale for nondisclosure is still compelling: the breadth and exact nature of the government's evidence is unknown to prospective defendants and unsubstantiated despite the leaks.
The court therefore finds that release of the tapes would prematurely reveal the government's case, thereby injuring the government's efforts to pursue enforcement actions. 5 U.S.C. § 552(b)(7)(A) thus permits the government to withhold the tapes requested by Congressman Murphy.
III. VAUGHN v. ROSEN ITEMIZATION
The plaintiff also attacks the defendants' Vaughn index. The court granted the plaintiff's motion for a Vaughn v. Rosen itemization
on May 7, 1980. The May 7 order commanded the government to "itemize all tapes responsive to the plaintiff's FOIA request, specifying the number of tapes, the dates taken, and the applicable FOIA exemptions."
The government filed its Vaughn index on May 13, 1980. Third affidavit of Thomas Henry Bresson. The Bresson affidavit specifies that the government possesses four videotapes responsive to the plaintiff's FOIA request. All four tapes also have corresponding oral recordings. The FBI recorded the first tape on October 30, 1979 and the latter tapes on January 10, 1980. Third Bresson affidavit, P 3. As stated in the government memoranda, previous affidavits, and the third Bresson affidavit, the defendants claim exemptions (b)(3) and (b) (7)(A) are applicable to the entirety of the tapes.
The plaintiff's challenge of the Vaughn index takes the form of a motion for an order to show cause why judgment should not be entered for the plaintiff forthwith. The plaintiff alleges that the itemization detailed in the third Bresson affidavit fails to set forth "the correlation of statements in the justification . . . to actual portions of the requested records."
The government's Vaughn index meets the standards of this Circuit. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), requires an itemization of the agency records and an identification of the exemptions claimed. It is particularly helpful in complex FOIA cases involving numerous materials. The government sometimes claims several FOIA exemptions for each document. But each exemption may apply only to one portion of a withheld agency record. In such a situation, a Vaughn v. Rosen itemization discloses to the plaintiff which exemption applies to each segment of withheld material. According to the D.C. Circuit:
In a large document it is vital that the agency specify in detail which portions of the document are disclosable and which are allegedly exempt . . . (A)n indexing system would subdivide the document under consideration into manageable parts cross-referenced to the relevant portion of the Government's justification.
Id. at 827.
In the instant case, however, the government claims two exemptions that apply to the entirety of the plaintiff's FOIA request. There is no question concerning which exemption applies to each withheld portion of the agency records. Moreover, the government has identified all records responsive to the plaintiff's FOIA request. The index also specifies the exemptions claimed by the defendants. Accordingly, under the circumstances of this case, the government index satisfies the dictates of Vaughn.
There is a second, and equally compelling reason, supporting the sufficiency of the defendants' Vaughn v. Rosen itemization. A more detailed itemization of the four withheld videotapes would compromise the efficacy of the very exemptions claimed.
The court in Vaughn recognized that "an analysis sufficiently detailed would not have to contain factual descriptions that if made public would compromise the secret nature of the information . . ." Id. at 826. Judge Wilkey, who authored Vaughn, recently reaffirmed that a document by document index is unnecessary when an index would reveal "the secret nature of the information." Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (1978). Any notion that this rationale applied only to the (b)(1) national security exemption was dispelled in Mead Data Central, Inc. v. United States Dept. of Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242 (1977), a case in which the government claimed exemption five. The court in Mead noted that "agencies should not be forced to provide such a detailed justification that would itself compromise the secret nature of potentially exempt information." Id. at 261.
Herein, a more detailed justification would compromise the secrecy of the information protected by exemptions (b)(3) and (b)(7)(A). For example, the release of additional information would reveal the scope and nature of the grand jury investigation. This would undermine exemption three, which, through the application of Criminal Rule 6(e), guards the secrecy of grand jury proceedings. Similarly, the release of more specific information would jeopardize future enforcement actions. As explained, supra, the plaintiff is entitled to such information only after indictment. Early release would therefore undercut the purpose of exemption (b)(7)(A).
The court recognizes the importance of a Vaughn v. Rosen itemization. A FOIA plaintiff deserves to know which exemptions apply to each segment of withheld material. But when the government claims two exemptions apply to the entirety of four withheld agency records; when the court's in camera examination confirms the correctness of the government exemption claims; and, when more specific itemization would undermine the efficacy of the claimed exemptions, a more generalized index, such as that provided herein, suffices.